Jilgar Court [2006] QBCCMCmr 676 (19 December 2006)

Last Updated: 27 March 2007

REFERENCE: 0183-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14461
Name of Scheme:	Jilgar Court
Address of Scheme:	70 Liverpool Road CLAYFIELD QLD 4011

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

Marie Burnett, the Owner of lot 7

I hereby order that the application for an order that the Body Corporate for Jilgar Court CTS and the Administrator (David Midwood) conduct a valid Annual General Meeting of the Body Corporate, and other orders is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0183-2006

"Jilgar Court" CTS 14461

The Scheme

"Jilgar Court" was registered as a building units plan (now termed a building format plan) in September 1971 and comprises 8 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Application

An application has been made by Marie Burnett of Lot 7, seeking an order that:

"The Body Corporate for Jilgar Court CTS 14461 and the Administrator (David Midwood) for the Body Corporate for Jilgar Court CTS 14461 conduct a valid Annual General Meeting of the Body Corporate for Jilgar Court CTS 14461"

The applicant states that

• The financial year of the body corporate ends on 31 July;
• The Administrator, Mr Midwood instructs that all Management Committee Communications be channelled through him;
• On about 20 November 2002 an Engineer’s report was obtained from "Solutions in Engineering" and presented to lot owners;
• On about 6 October 2005 a second Engineer’s report was obtained from "Eric Fox Consulting", presented to lot owners and unanimously accepted at the requested EGM held on 3 March 2005;
• The applicant is seeking an order that the AGM for 2005 be convened at which remedial structural work can be organised;
• The applicant states that "from 3 March 2005 to 8 June 2005 there was an abeyance in my requesting the prioritising/ 2005 AGM as I had become aware that a member or all members of the management committee would not conduct the 2005 AGM until the referee’s findings were known in relation to the 2 orders lodged by lot owner 3 "
• Between 8 June 2005 and 7 March 2006, numerous requests were made that the AGM be held.

In supplementary information submitted with this Office at a later date, the applicant states that:

• The "administrator" is not validly appointed;
• It is unclear how administration fund levies have been increased;
• She has not received certain documents from the "administrator" including the reason for the voiding of insurance by the former insurer, CHU;
• She also requires confirmation that the current insurer does not require an engineer’s report due to unapproved structural improvements in lots 4 & 8;
• She requires a report on remedial work required on the stairs;
• The resolution dated 5 April 2006, setting administrative fund levies, was an invalid resolution;
• She requires an order that Midwood Body Corporate provide and forward to her, all the requested information within 7 days.

Submissions

Under section 243 of the Act, a copy of the application was provided to all members of the body corporate as well as the Administrator of the Body Corporate, Mr David Midwood, with an invitation to each to respond to the matters of dispute raised in the application. Submissions were received from 5 lot owners as well as the administrator.

The Administrator advised that the AGM had been organised for 5 April 2006.

The owner of lot 8 made the following submissions:

• The applicant has a history of disputes with neighbours and a propensity to make complaints to various authorities;
• It is difficult to determine the basis of the current application;
• Mr Midwood is not the Administrator but a body corporate manager and he convened the AGM for the scheme which the applicant boycotted on the basis of her claim that the AGM was invalid;
• Although the applicant claims that the AGM was "invalid" she sought a copy of the minutes of the meeting;

The owner of lot 4 made the following submissions:

• The applicant has a long history of making complaints and lodging dispute resolution applications;
• The body corporate made a commercial decision to relinquish the insurance policy with CHU following continual complaints to the Insurance Ombudsman by the applicant;
• Lot 7 previously voted against the stair repairs;
• The improvements carried out consist of painting and a kitchen replacement (under insurance) as a result of water leaking from a faulty air conditioning unit in lot 7, neither of which are anyone else’s concern.
• Midwoods have already called for nominations and motions for the next AGM.

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)).

Determination:
The applicant has sought the following order:

"The Body Corporate for Jilgar Court CTS 14461 and the Administrator (David Midwood) for the Body Corporate for Jilgar Court CTS 14461 conduct a valid Annual General Meeting of the Body Corporate for Jilgar Court CTS 14461"

Following a series of subsequent communications, the applicant also sought orders that the body corporate provide her with certain information and provide explanations/ reports regarding various issues such as why the insurer was changed and certain maintenance work.

I have reviewed documentation provided to this office on behalf of the body corporate and note that the last AGM was held on 5 April 2006. I also note that preparation is underway for the next AGM.

Having regard to the information provided by the applicant, and also submissions lodged with this office in response in response to the application, I can see no basis on which to invalidate that AGM. While it is possible that there may have been some procedural regularities regarding the calling of the meeting, I am not aware of any irregularities of such a nature as to justify an order invalidating the AGM. To quote His Honour Judge Boulton DCJ in
Chen v Body Corporate for Wishart Village CTS

The very detailed provisions of the standard module regulation to which I have referred above make it almost inevitable that from time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.

In relation to the request for orders that the body corporate provide certain information, I advise that under section 205 of the Act and sections 151 of the Standard Regulation Module, a lot owner is entitled to access the body corporate roll and other body corporate records within 7 days of making a written request accompanied by the prescribed fee.

Section 205 of the Act provides as follows:

Information to be given to interested persons
(1) This section provides for the giving of information by the body corporate for a community titles scheme from the body corporate’s records.
(2) Within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation module applying to the scheme, the body corporate must--
(a) permit the person to inspect the body corporate’s records; or
(b) give the person a copy of a record kept by the body corporate.
Maximum penalty--20 penalty units.
(3) However, the body corporate is not required to allow a person to inspect or obtain a copy of a part of a record under subsection (2) if the body corporate reasonably believes the part contains defamatory material.
(4) The body corporate must, within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation module applying to the
scheme, issue a certificate (a body corporate information certificate) in the approved form giving financial and other information about the lot.
Maximum penalty--20 penalty units.
(5) A person who obtains a certificate under subsection (4) may rely on the certificate against the body corporate as conclusive evidence of matters stated in the certificate, other than to the
extent to which the certificate contains an error that is reasonably apparent.
(6) In this section--
interested person means--
(a) the owner, or a mortgagee, of a lot included in the scheme; or
(b) the buyer of a lot included in the scheme; or
(c) another person who satisfies the body corporate of a proper interest in the information; or
(d) the agent of a person mentioned in paragraph (a), (b) or (c).

Obviously, the body corporate and its agent, the body corporate manager, are bound to comply with this provision. However this provision relates to existing body corporate documents and does not require the body corporate to prepare explanations or reports as requested by the applicant.
Accordingly I can see no basis for making the orders subsequently requested by the applicant.