Silvapine Villas [2006] QBCCMCmr 40 (1 February 2006)

Number of Scheme:	8160
Name of Scheme:	Silvapine Villas
Address of Scheme:	31 Nyanza Street WOODRIDGE QLD 4114

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

I hereby declare that the disputed meeting was not a valid meeting of the body corporate;

I further declare that each purported motion carried at the disputed meeting (including the motions terminating the Body Corporate Manager and the Caretaker for the Scheme) is invalid;

I further declare that committee members elected at the Annual General Meeting held on 12 April 2005 and the appointment pursuant to the vacancy of the committee meeting of 27 July 2005 are the committee members for the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0684-2005

"Silvapine Villas" CTS 8160

THE SCHEME

Silvapine Villas is a subdivision of 50 lots on a Building format plan. The regulation module applying to the scheme is the Accommodation Module.

The body corporate manager for this scheme is Gold Coast Body Corporate Specialists pursuant to a three year engagement and the resident manager (caretaker) for the scheme is BRM Holdings Pty. Ltd.

APPLICATION

By application received by this Office on 26 September 2005, the applicant sought the following Interim orders:

1. An interlocutory order that the committee (the putative committee) purportedly appointed in the requested general meeting dated 6 August 2005 (the disputed meeting) by its servants or agents be restrained from:
(a) representing that they are the committee for the Body Corporate;
(b) implementing any of the motions carried at the disputed meeting;
(c) making any decisions or exercising any functions of a committee or committee members.

2. An order that the putative committee be ordered to forthwith disclose the names of any persons engaged by them or proposed to be engaged by them to perform works on common property putative or for the body corporate so that the body corporate can inform them not to proceed with any works until resolution of this dispute.

3. Until final orders are made, that the committee duly elected at the Annual General Meeting of 12 April 2005, together with the member of the committee appointed on 27 July 2005 by the committee pursuant to a casual vacancy continue to exercise all of the powers of the committee and committee members.

4. Such further or other interim orders as the Adjudicator thinks fit.

The applicant has also sought the following final orders:

1. A declaration that the disputed meeting was not a valid meeting of the body corporate;
2. A declaration that each purported notice passed at the disputed meeting be declared invalid;

3. A declaration that committee members elected at the Annual General Meeting held on 12 April 2005 and the appointment pursuant to the vacancy of the committee meeting of 27 July 2005 are the committee members for the scheme.
4. In the alternative, if the disputed meeting is not declared invalid that

(a) the motions terminating the Body Corporate Manager and the Caretaker for the Scheme be declared invalid; and / or

(b) the engagement of Starway Enterprises as body corporate Manager for the Scheme is invalid.

JURISDICTION

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-
(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or
(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

BACKGROUND

The applicant claims that the last validly convened general meeting of the Body Corporate was the Annual General Meeting held on 12 April 2005, at which a Body Corporate committee was elected.
A subsequent vacancy on the committee resulted in the appointment of a replacement committee member at a committee meeting held on 27 July 2005.

On or about 27 July 2005, it is alleged that a Mr Wiltshite (owner of lot 24) and a Mr. Wood (a purported body corporate manager) attempted to convene a requested General Meeting by issuing a notice of requested general meeting dated 27 August 2005 (presumably the actual date was 27 July 2005, having regard to the facsimile printed date appearing on the document) giving lot owners a maximum of 9 days notice. It is alleged that the form and process of the notice was not in compliance with section 59 of the Act.

The committee subsequently instructed its solicitors to write to all lot owners advising that the purported meeting was invalid and there was no need to attend. The solicitors also wrote to Messrs Wiltshire and Wood requesting that they desist from representing that they had the authority of the body corporate.

Messrs Wiltshire and Wood claim that the meeting nevertheless proceeded and have produced minutes of the meeting. It is submitted that the "minutes" do not comply with section 57 of the accommodation module as they do not state the lots represented and do not include the number of votes cast for each candidate seeking election to the body corporate committee.

Based in the material submitted in support of the application, on 29 September 2005 I made the following Interim Orders:

1. that the committee (the "putative committee") purportedly appointed in the requested general meeting dated 6 August 2005 (the disputed meeting) is restrained from:

(c) making any decisions or exercising any functions of a committee or committee members.

2. that the putative committee is to forthwith disclose to the committee duly elected at the Annual General Meeting of 12 April 2005, the names of any persons engaged by them or proposed to be engaged by them to perform works on common property putative or for the body corporate so that the body corporate can inform them not to proceed with any works until resolution of this dispute.

3. that the committee duly elected at the Annual General Meeting of 12 April 2005, together with the member of the committee appointed on 27 July 2005 is to continue to exercise all of the powers of the committee and committee members until final orders are made.

4. that until final orders are made, Gold Coast Body Corporate Specialists is to continue as Body Corporate Manager.

5. that until final orders are made, BRM Holdings Pty. Ltd. is to continue as resident caretaker.
It is submitted that an interim order is required to prevent the purported new committee from engaging contractors to undertake work on the common property and also to prevent the purported "new committee" from telling lot owners not to pay levy notices issued by Gold Coast Body Corporate Specialists.

The purpose of the Interim order was to maintain the status quo until a final determination could be made following an invitation extended to all owners on 4 October 2005 to make submissions regarding the application for final orders.

SUBMISSIONS

As a result, submissions were received from 5 individual owners as well as Mr Underwood and the "body corporate".

Overall, I think it is probable that many of the units are owned by investors who tend to be apathetic about the operation of the scheme. From the few individual submissions received, it would also appear that general maintenance of the common property i.e. mowing, cleaning and rubbish removal, has been neglected and exterior building repairs have not been of a high standard.

The Chairman of the body corporate has re-iterated the general dissatisfaction with the performance of the "on-site manager" (caretaker) which prompted him to purportedly issue a "Remedial Action Notice".

Further, it would appear that individual owners lack an understanding of the respective roles and responsibilities of the body corporate, body corporate manager, "on-site manager" (caretaker), letting agent and individual owners.

DETERMINATION

I have now considered all submissions and have set out below my findings regarding the specific points raised by the applicant body corporate:

1. Request for EGM

It seems clear that the request for an extraordinary general meeting, purportedly convened on 6 August 2005, does not comply with section 59 of the Accommodation Module which provides as follows:

59 Requirement for requested extraordinary general meeting
(1) An extraordinary general meeting (a requested extraordinary general meeting) of the body corporate must be called if a notice asking for an extraordinary general meeting to consider
and decide motions proposed in the notice is--
(a) signed by or for the owners of at least 25% of all the lots included in the scheme; and
(b) given to the secretary or, in the secretary’s absence, the chairperson or, if the committee has not yet been chosen, given to the original owner.
(2) The secretary may be presumed to be absent if a notice is given to the secretary at the address for service of the body corporate, and no reply is received within 7 days.
(3) A requested extraordinary general meeting--
(a) must be called, within 14 days after the notice is given under subsection (1), by the person to whom the notice is given; and
(b) must be held within 6 weeks after the notice is given.
(4) A requested extraordinary general meeting of the body corporate may be called even though the body corporate’s first annual general meeting has not yet been held.

In particular Section 59 contemplates that the notice requesting the extraordinary general meeting should include the motions to be considered at the meeting.

The body corporate has also pointed out that the notice was not given to the secretary as contemplated by section 59.

2. Notice of Meeting

The applicants submit that 21 days notice of the meeting was not given as required by section 41 of the accommodation module. From submissions received, it is clear that at most, 9 days notice was given.

3. Failure to Prepare Agenda in Accordance with Legislation

Section 43 of the Accommodation Module provides as follows:

43 Agenda for general meeting
(1) The committee must prepare an agenda for each general meeting.
(2) The agenda must include--

(3) If the general meeting is an annual general meeting (other than the first annual general meeting), the agenda must also include--

(a) the substance of each statutory motion to be considered at the meeting; and

(b) anything else required, under the Act, to be included on the agenda for the meeting.

As mentioned in my interim order, I believe there is substance in the applicant’s submission that section 43 has not been complied with as there were no proposed motions by the committee for the requested general meeting, and further, there is no resolution of the committee setting the agenda.

While I note that lot owners are dissatisfied with the maintenance of common property and general state of the grounds, this is the responsibility of the "on-site manager" (caretaker). In this regard the correct procedure is for the body corporate is to enforce the terms of the "Management Agreement" with BRM Holdings Pty. Ltd. Where termination of the agreement is sought, the requirements of sections 84 to 84C of the Accommodation Module Regulation must be complied with. For example an ordinary resolution of the body corporate is required to approve the issue of a remedial action notice.

Similarly, where termination of the agreement with the body corporate manager is sought, the above provisions must be complied with.

Where lot owners are dissatisfied with the performance of the body corporate committee, they are able to appoint a new committee at the AGM or call an EGM for this purpose, but must do so in accordance with the provisions of the Act and the Accommodation Module Regulation.

Conclusion

I therefore propose to make the following declarations:

1. the disputed meeting was not a valid meeting of the body corporate;

2. each purported motion carried at the disputed meeting (including the motions terminating the Body Corporate Manager and the Caretaker for the Scheme) is invalid;

3 committee members elected at the Annual General Meeting held on 12 April 2005 and the appointment pursuant to the vacancy of the committee meeting of 27 July 2005 are the committee members for the scheme.

•	The Body Corporate Manager, Gold Coast Body Corporate Specialists is responsible for administrative functions such as collection of levies, payment of approved accounts and convening of meetings;
•	The "on-site manager" (caretaker) is responsible for such functions as cleaning, gardening, mowing and supervision of tradesmen engaged by the body corporate to effect repairs to common property; and
•	it is the responsibility of individual owners to attend to repairs and maintenance within their own lot.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Silvapine Villas [2006] QBCCMCmr 40 (1 February 2006)