Il Villaggio [2006] QBCCMCmr 516 (12 October 2006)

Last Updated: 19 December 2006

REFERENCE: 0481-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28518
Name of Scheme:	Il Villaggio
Address of Scheme:	24 Radan Street SUNNYBANK HILLS QLD 4109

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Christopher West, the owner of Lot 9

I hereby order that the application for an order by Christopher West, the owner of Lot 9 seeking an outcome that he should have been allowed to observe the Financial Report - Item 5 on the agenda at the committee meeting held on 23 June 2006, is dismissed. I further order that within 14 days of the date of this order, the secretary of the body corporate for Il Villaggio community titles scheme 28518 must give Christopher West, the owner of Lot 9 a copy of the resolution voted on other than at a meeting of the committee and passed on 27 February 2006.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0481-2006

"Il Villaggio" CTS 28518

APPLICATION

This application is by Christopher West, the owner of Lot 9 (applicant) against the body corporate. The applicant is seeking the following outcomes:

An order that the applicant should have been allowed to observe the Financial Report - Item 5 on the agenda at the committee meeting held on 23 June 2006.

An order that the applicant receive a copy of the Flying minute of 20/2/06 - Instructing TEYS Strata to accept service of claim from Dibbs Abbott Stillman as listed in the minutes correspondence for the committee meeting of 6 April 2006.

JURISDICTION

"Il Villaggio" Community Titles Scheme 28518 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

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 claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement^[1]. An order may require a person to act, or prohibit a person from acting, in a way stated in the order^[2]. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate^[3].

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. A submission was received a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

DETERMINATION

That the applicant should have been allowed to observe Item 5 - Financial Report on the agenda of the committee meeting held on 23 June 2006.

The applicant states that he attended the committee meeting dated 23 June 2006 as an observer, and that he and two other owners who are not committee members were asked to leave the meeting for Item 5 on the meeting’s agenda titled ‘Financial Report’. The applicant submits that there was no discussion or vote taken on whether he or the other persons should be present, or on whether the item was one mentioned in section 30B(3) of the Accommodation Module. The applicant contends that his rights as a lot owner have been affected by the chairperson’s ruling as all owners should know matters relating to the scheme’s financial position, and that the financial report could not fall under the points mentioned in section 30B(3).

The outcome sought is supported by Val Ivett of Unit 24 and Toni Leigh of Unit 31 who confirmed that they were asked to leave the meeting.

Domingo Martinez, the owner of Lot 30 and the chairperson for the body corporate submitted that he asked the past committee members to leave the meeting as there were matters which concerned them. Mr Martinez submitted that this included the cost of disputes to the commissioner’s office and the legal costs incurred by the previous committee. Mr Martinez stated that the financial report was sent out in the mail with the minutes of the committee meeting. Mr and Mrs Weatherby of Lot 6 (Mrs Weatherby is a committee member) stated that there were several topics to be discussed under the financial report about the previous committee. These submissions were supported by the submissions from Peter van Esseveld and Jane Lamason of Lot 40, and Grant Brown of Villa 16. Mr Brown also submitted that the owner of Villa 8 was also requested to leave the meeting even though he was not an ex-committee member.

In reply to submissions, the applicant states that he is entitled to know the full and true story on finances and that he is not in dispute with the body corporate about finances.

On 10 October 2006, a member of the commissioner’s office contacted the body corporate manager and requested a copy of the minutes of the committee meeting dated 23 June 2006. The minutes provided by the body corporate manager indicate T Leigh, V Ivett, C West and J Huang were in attendance consequent to a notification being received. With respect to Item 5, there is reference to the treasurer’s report; administration costs; arrears; cash flow; and a Bank of Queensland account. The minutes make mention of past or previous committee members under the subheading of ‘Administration costs’. Items 7 and 8 in the minutes relate to dispute resolution applications and legal action respectively, and mention the past committee members.

Section 30B of the Accommodation Module permits a lot owner who is not a committee member to attend a committee meeting on certain conditions. For instance, section 30B(2) requires the lot owner to give a written notice of intention to attend the meeting to the secretary not later than 24 hours before the meeting starts. Section 30B(3) provides a power for the committee to decide that a lot owner must not be present for an item of business about a breach of the scheme by-laws; starting a proceeding; a proceeding against the body corporate; or a dispute between the body corporate and the owner or occupier of a lot. Section 30B(4) provides that the non member must not be present for a discussion or for a vote by the committee about whether the person may be present for an item of business mentioned in subsection (3).

Section 30B provides a legislative right for an owner who is not a committee member to attend a committee meeting. Given that the committee is the elected body generally responsible for the day-to-day administration of the body corporate, owners should have the opportunity to observe the committee’s decision making process. For instance, a non member owner should be able to observe business relating to the general management and administration of the body corporate. However, this right must be balanced given that a committee must be able to properly and effectively perform its duties and functions. Given its role, a committee will be expected to discuss and vote on matters of a potentially sensitive nature or which may involve a particular owner or occupier of a lot in the scheme. Section 30B(3) confers a power to the committee to be able to consider specific issues in private.

The members of the committee present at the meeting dated 23 June 2006 have submitted the reasons for the committee deciding that three (and possibly four) non member owners not be present for the consideration of Item 5. Given the information provided by the applicant, the committee also decided that these persons (some or all) not be present for three other items of business. The applicant has not disputed these decisions. Yet he has disputed the decision for Item 5 even though it would seem that there is some connection to Items 7 and 8 given the reasons provided by committee members and the statements in the minutes of the committee meeting. The committee is entitled to make a decision that a non member owner not be present for certain items of business and in the circumstances, I am satisfied that there was proper reason for the committee to make the decision pursuant to section 30B even though the applicant may consider that there is not any dispute between himself and the committee about finances.

For these reasons, I have dismissed the outcome sought. Additionally,I do not consider that the applicant’s rights as a lot owner have been affected by the committee decision. The committee decided it was necessary to consider some financial matters in private and have provided the outcomes to owners in the minutes of the committee meeting and in the financial report submitted as being sent out in the mail with the minutes of the committee meeting.

That the applicant be given a copy of the flying minute of 20 February 2006 instructing TEYS Strata to accept service of claim from Dibbs Abbott Stillman.

The applicant submits that he has not received a copy of the flying minute of 20 February 2006. He has shown that on 26 April 2006 he wrote to the body corporate manager requesting a copy of the flying minute of 20 February 2006. Val Ivett and Toni Leigh have submitted that they have not received a copy of this flying minute.

Domingo Martinez submitted that this issue may have been caused due to an oversight by the body corporate manager and that the applicant could have contacted the manager and requested a copy. Mr and Mrs Weatherby of Lot 6, and Peter van Esseveld and Jane Lamason of Lot 40 made similar submissions.

In reply to submissions, the applicant states this matter could have been withdrawn if he had received a copy of the flying minute. He states that he has still not received a copy of the flying minute.

On 10 October 2006, a member of the commissioner’s office contacted the body corporate manager and requested a copy of the minutes of the committee meeting dated 6 April 2006 and the flying minute dated 20 February 2006. These documents have been provided by the body corporate manager. The minutes of the committee meeting dated 6 April 2006 (at page 3) indicate that all flying minutes shown on the correspondence list were ratified. The correspondence list provided by the applicant includes the flying minute dated 20 February 2006.

Section 33 of the Accommodation Module makes provision for the committee to make a valid resolution even though the motion is not passed at a committee meeting. The section generally provides for members to give a written agreement to the written notice of motion, and a resolution is made where a majority of all voting members agree to the motion. Section 34(1) of the Accommodation Module provides that the committee must ensure that a full and accurate record is kept of a motion voted on under section 33. Section 34(2), (3) and (4) provides for giving a copy of a section 33 resolution to lot owners and essentially requires that the secretary must, within 21 days of the passing of the resolution, give a copy of any resolution voted on under section 33 to each lot owner.

The applicant claims that he has not received a copy of the flying minute of 20 February 2006. A ‘flying minute’ is a common term for a resolution made under section 33. The committee members seem to agree that there may have been an oversight by the body corporate manager. It is not clear if this oversight applied only to the applicant (and to Val Ivett and Toni Leigh) or generally to each lot owner who was entitled to receive a copy of the resolution under section 33. In the circumstances, I am satisfied that the applicant has not been given a copy of the resolution to which he is entitled and that it is appropriate that the secretary (on behalf of the body corporate) now provide a copy of the resolution to the applicant. It may also be necessary to examine whether or not other lot owners were given a copy of the resolution, and if necessary the body corporate should endeavour to ensure that all lot owners are given a copy of the resolution.

---

^[1] Section 276(1), Act.
^[2] Section 276(2), Act.
^[3] Section 284(1), Act.