Garran [2006] QBCCMCmr 51 (8 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0045-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17099
Name of Scheme:	Garran
Address of Scheme:	359 Golden Four Drive TUGUN QLD 4224

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

Leonora Kanaris, the co-owner of lot 5

C G YOUNGI hereby order that – (1) Leonora Kanaris of PO Box 6139 Fairfield Gardens, QLD is appointed Administrator to call, hold and chair an extraordinary general meeting ("the meeting") of "Garren" within three (3) months of the date of this order for the purpose of - • the consideration of motions included on the agenda of the meeting; and • the election of committee members. (2) The Administrator shall hold appointment for the period beginning from the date of this order until the close of the meeting ordered to be held. I further order that - (a) within fourteen (14) days of the date of this order the administrator must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme. (b) each owner shall have twenty-eight (28) days from the date of this order to provide to the Administrator their motions (if any) for inclusion on the agenda of the meeting, and their nomination or nominations (if any) for the committee and provided the same are provided to the Administrator within twenty-eight (28) days from the date of this order, then the Administrator must include such motions and nominations on the agenda of the meeting to be convened by the Administrator. (c) The administrator shall not give the notice of meeting to owners earlier than twenty-eight (28) days from the date of this order. I further order that – (1) For the purpose of calling, holding and chairing the meeting, the Administrator shall have all the powers of the chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers - • to further delegate any of those powers to another person; or • to incur any expenditure apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation. (2) The nomination and election procedures for the election of committee members shall be in the manner provided for in sections 13 and 13A of the Body Corporate and Community Management (Standard Module) Regulation 1997. (3) The meeting shall be otherwise called and held as an extraordinary general meeting in accordance with the Act and Standard Module, in particular Part 4 headed General Meetings and all other provisions relating to meetings under the Standard Module.2y2n I further order that in order to assist the Administrator to comply with the terms of this order, the appointed body corporate manager for the scheme, Strata and Community Management Services Pty Ltd of Coolangatta shall • immediately provide to the Administrator the postal address of all lots owners from the roll for the purpose of the giving of notice of the meeting by the Administrator, and • immediately prior to the holding of the meeting to be convened by the Administrator, provide to the Administrator (in writing) a list of the persons who have the right to vote at the meeting, in accordance with section 55 of the Standard Module.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0045-2006

"Garran" CTS 17099

On 1^St February 2006, I made an Order of an Adjudicator in respect of the above scheme following an application by Leonora Kanaris, the co-owner of lot 5. The reasons for that order were as follows:

The applicant, Leonora Kanaris, the co-owner of lot 5 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

The applicant hereby requests that a declaratory order be issed authorising the applicant to convene an EGM of the body corporate for Garren for the specific purpose of correctly forming a body corporate committee to allow the scheme to correctly function under the legislation guidelines.
The proposed meeting would be held under the guidelines established by the BCCM (Standard Module) Regulation, section 25 or as so ordered.
The applicant further requests that as part of the order, the body corporate manager shall be instructed to provide lot owners details to the applicant for the purposes of mailing.

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)).

Specifically, without limiting the power of an adjudicator to make an order under section 276(1), an adjudicator may make an order appointing an administrator, and authorising the administrator to perform obligations of the body corporate, its committee, or a member of the committee under the Act or community management statement.

Section 301 of the Act deals specifically with the appointment of an Administrator, quote:

301 Appointment of administrator
(1) This section applies if an order is made under this chapter appointing an administrator.
(2) The administrator has the powers given to the administrator under the order.
(3) Without limiting subsection (2), the power may include power to levy a special contribution against the owners of lots included in a community titles scheme to meet the cost of complying with obligations to which the order relates and the costs of the administration.
(4) The order may--
(a) withdraw all or particular stated powers from the body corporate, a body corporate manager to whom a power has been given under section 119 or 120, or stated officers of the body corporate
until the administrator has taken the necessary action to secure compliance with the obligations; and
(b) require officers of the body corporate or a body corporate manager mentioned in paragraph (a) to take stated action to help perform the work the administrator is required to perform; and
(c) fix the administrator’s remuneration.
(5) The administrator’s remuneration is to be paid out of the funds of the body corporate.
(6) This section does not apply to the enforcement of a monetary obligation of the body corporate arising under another Act unless it is an enforceable money order.
The scheme is a subdivision of 11 lots recorded under a building units plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the standard module.

In the grounds to the application, the applicant states that at the AGM held in August 2005, the required number for the committee were not elected. Subsequently, the body corporate failed to convene the EGM required to ensure that the committee consisted of the required number. An EGM was requisitioned for this purpose, and the manager acknowledged receipt of the requisition notice on the secretary. Subsequently, the manager advised that the secretary had resigned, and shortly thereafter the treasurer "leaving the body corporate without a working committee". This was confirmed by the body corporate manager in correspondence dated 11 January 2006. The applicant concludes:

With the demise of the committee, the ability to call a general meeting and maintain the common property of the scheme is now a major issue and needs to be resolved promptly.

The applicant has provided as part of the application a statement signed by 6 of the 11 owners in the scheme endorsing "the appointment of Mrs Leonora Kanaris to be ... empowered to correctly call and chair an EGM of the body corporate to ensure the correct formation of a working committee". I am satisfied that this, albeit a bare one, represents a majority of owners who are in support of the application. Further I am satisfied that currently there is no elected committee, and this is verified by the body corporate manager in correspondence.

Given that a majority of owners have provided their support for the application, I have not sought submissions regarding the application from all owners, so as not to delay the application and the convening of the meeting. However, given that certain owners may not be aware of this application, and that a general meeting is to be called, I have provided in the order that a copy of this order must be provided to all owners and they given the opportunity to submit motions for inclusion on the agenda and also to nominate for the committee. These requirements will mean all owners are aware of the meeting to be convened, and have the opportunity to both submit motions for inclusion on the agenda and to nominate for the committee. These are important requirements and necessary to ensure the rights of all owners.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold an extraordinary general meeting so as to elect a committee, and further, that there is no reason before me why the requested appointment of an administrator should not be made, but subject to the conditions I have imposed in the order.

I have further ordered the body corporate manager to provide to the applicant, as Administrator, certain information which will be required by the Administrator in order to both convene the meeting, and to conduct the meeting by determining the right to vote. Accordingly, the body corporate manager should provide all necessary assistance in this regard. Rosetta G JorgensenUnit 1, 17 Oxford Street, Rockhampton Qld 4700xxxxxx2n

Application of the "slip rule" to the order made on 1^st February 2006

Subsequent to the order being made, the appointed body corporate manager (the manager) wrote to this office seeking "an urgent review of the order of an adjudicator be conducted". It seems the manager’s is concerned that the order went further then requested by the applicant in that the order made referred to the holding of an annual general meeting and not an extraordinary general meeting, and further that the order provided, in addition to the holding of an election for the committee, for the submission of motions for inclusion on the agenda of the meeting to be convened. The manager then makes certain assertions that I have deviated from provisions of the legislation to include certain matters "only applicable to annual general meetings".

Ordinarily, a person aggrieved by an order of an adjudicator has certain rights of appeal which are advised as part of the order process. Adjudicators specifically, nor the department generally, do not simply "review" orders on the basis of written correspondence, and rarely revisit an order previously made on the basis that the Adjudicator considers him or herself to be functus officio in respect of the decision. There is however one very specific and limited exception to this, and that is where the circumstances of the order are such as to permit or invite the application of the "slip rule".

The "slip rule" is defined in Butterworths Australian Legal Dictionary (1997) as follows:
The power of courts to correct clerical mistakes in a judgment or errors arising from an accidental slip or omission, even after the formal entry of the judgment: for example (CTH) Federal Court Rules 1979 r7(3); (NSW) Supreme Court Rules 1970 Pt 20 r 10. The scope of the amending power is limited to judgments which do not correctly express the intention of the judge when judgment was pronounced: Arnett v Holloway [1960] VR 22. However, the slip rule may be extended to mistakes by inadvertence (Cawood v Infraworth Pty Ltd [1990] 2 QdR 114), or omissions resulting from counsel’s failure to bring relevant circumstances to the attention of the court: Symes v Commonwealth (1987) 89 FLR 356; L Shaddock & Associates Pty Ltd v Parramatta City Council (no 2) [1982] HCA 59; (1982) 151 CLR 590; 43 ALR 473. It does not empower the court to alter orders or make additional ones, simply because the original orders have failed to contemplate a situation or event which has arisen. The power to amend orders under the slip rule comes from statute and is also inherent in superior courts: In the Marriage of Bailey [1990] FamCA 14; (1990) 14 Fam LR 125; FLC 92-145.

In "Paloma" CTS 9524 (0702-1999), the Adjudicator applied the slip rule, explaining as follows:

Consequently, I have decided to use my inherent jurisdiction under the "slip rule" and issue a fresh order whereby I clearly indicate that the fascias are also to be repaired. I have stated that they are roof fascias which I think is an adequate description.
I wish to stress that I am not reconsidering the merits of this matter. I am merely making clear what I always intended.
I intend that the orders I now issue entirely replace the orders I made on 14 March 2000.
In my original order on 14 March 2000 I gave the Body Corporate four months to repair the roof. I have not altered that period of time in making these new orders.

As stated, the manager has raised two objections to my original order. I intend to deal with these inturn.

The first is that I ordered that an annual general meeting be held, whereas only an extraordinary general meeting was requested. The manager refers to additional requirements and "undue expense" if an annual general meeting is to be held. I agree that only an extraordinary general meeting was requested, and further, that only an extraordinary general meeting is required to be held, and that the fuller requirements of an annual general meeting are to be avoided. I am satisfied that this is a circumstance warranting the application of the slip rule so that the words "annual general meeting" are replaced by the words "extraordinary general meeting" where they appear in my order. The order now made reflects this amendment.

The second objection raised in respect of the original order is that the order provided for "the calling of motions to be submitted by lot owners"; a requirement that the manager informs me is "ONLY applicable to Annual General Meetings". The manager then submits:

A provision for individuals to submit motions to an EGM is by way of a Requested EGM which is not mentioned in the Order (s61 Standard Module Regulation) or if a previous request has been submitted and is awaiting the next general meeting.

It has long been the practice of adjudicators to include in orders appointing an Administrator and requiring that an AGM or EGM be held, to include provision for the submission to the Administrator of all motions proposed for inclusion on the agenda by any owner. The reason for this is a practical and common sense one. If a body corporate is being ordered to convene a general meeting, whether it be it an annual or alternatively, an extraordinary general meeting, owners should be able to submit any motions for inclusion on the agenda which they so choose. Similarly, the body corporate should be able to consider all motions relevantly before it at the time. It is in the interests of all owners, and the body corporate generally, that all motions submitted by owners up to the time of the meeting notice being sent out be included on the agenda of a general meeting. Further, I am satisfied that an adjudicator has sufficient powers under the legislation to contemplate an order in such terms.

There is no aspect of error or oversight in the fact that the original order allowed or provided for the submission of motions by owners, for inclusion by the Administrator on the agenda of the meeting to be convened. Consequently, no amendment to the terms of the original order has been made in respect of this aspect. If the manager is aggrieved by this aspect, then I refer the manager to the right of appeal of the order under the legislation.

Finally, the manager mentions one further issue related to the second outlined above. The manager states:

As a previous request for an EGM was submitted in accordance with s61, please confirm by way of an amended order that those motions ARE required to be included on the agenda ... so that the person convening the meeting by way of your order does so in compliance with the legislation.

I note the terms of the order made states:C G YOUNG

(4)	For the purpose of calling, holding and chairing the meeting, the Administrator shall have all the powers of the chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers -

• to further delegate any of those powers to another person; or
• to incur any expenditure apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

(5)	...
(6)	The meeting shall be otherwise called and held as an extraordinary general meeting in accordance with the Act and Standard Module, in particular Part 4 headed General Meetings and all other provisions relating to meetings under the Standard Module.2y2n

I consider these provisions fully contemplate the situation raised by the manager, and that no further provision is required to be made. In particular, the Administrator is given all the powers of the Secretary, and subject to the specific terms of the order the meeting to be called is required to be held in accordance with the general meeting provisions, which include section 41 of the standard module.