Il Villaggio [2006] QBCCMCmr 717 (12 September 2006)

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

I hereby order that the application for the following orders:

1. A finding that the Body Corporate should have declared the voting of motions at the AGM on 4 February 2006.
2. (i) An order that the Body Corporate make available voting papers of the AGM held on 4 February 2006 to the three owners (Geoff & Val Ivett and Toni Leigh) who requested to view the papers at the conclusion of the meeting.
(ii) An order that voting papers of the AGM be made available to those owners at no charge as these voting papers should have been freely available at the conclusion of the meeting.
3. An order that the Body Corporate be requested to amend Minutes of the AGM held on 4 February 2006 so they reflect a true and accurate record of the proceedings of the meeting by-
(i) listing all persons in attendance
(ii) Changing the voting of Motion 1 to reflect the 11 owners present at the general meeting on 2 September 2005 and therefore entitled to vote.
4. An order that the Body Corporate pay Dibbs Abbott Stillman outstanding legal bills of $24,646.14 within 14 days, and that this amount be paid from our Legals budget of $40,000 for 01/09/05 – 31/08/06, which was carried at the AGM held on 4 February 2006.
5. An order that Motion 11 declared to have been resolved by ordinary resolution at the AGM dated 4 February 2006, was at all times void.
6. An order that the Body Corporate ensure that the Annual Safety review, due in February 2006, as required under the Workplace Health & Safety Act 1995, be carried out and the recommendations implemented.
7. An order that the Body Corporate not allow access to correspondence from Jane Lamason dated 10 January 2006.
8. An order that the Body Corporate gives seven (7) days written notice to the occupiers who were given written approval in 2005 to park a vehicle or allow a vehicle to stand on common property according to Schedule C By-Law 2a.
9. An order that the Body Corporate supply the external number "31" on the relevant common property wall, as was supplied in February 2006 to other numberings on common property walls which were effected by storm damage.

Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0227-2006

"Il Villaggio" CTS 28518

Scheme

"Il Villaggio" community titles scheme 28518 was registered as a standard format plan of subdivision comprising 40 lots and common property on 31 August 2000. It is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

Application

This application is one of three current applications before this office involving the "Il Villaggio" scheme.

This application is brought by Geoffrey William Ivett, the co-owner lot 24, against the body corporate seeking the following orders:

The applicant states that the administrator refused to declare the results of voting at the meeting and merely stated whether the motion had passed or failed. The applicant states that this denied owners the opportunity to request a poll and that owners now have no way of knowing if the voting was correct.

(ii) An order that voting papers of the AGM be made available to those owners at no charge as these voting papers should have been freely available at the conclusion of the meeting.

The applicant states that because the Administrator had refused to declare the results of voting, he requested to view the voting papers at the conclusion of the meeting. This request was denied. The applicant alleges a breach of s.54(5) of the Accommodation Module.

(ii) Changing the voting of Motion 1 to reflect the 11 owners present at the general meeting on 2 September 2005 and therefore entitled to vote.

The applicant alleges that the minutes of the meeting fail to record several people who were present, some of whom he names. This concerns the applicant because a vote was taken as to whether the meeting should be tape recorded. The minutes show that this motion was defeated 7 "yes" and 8 "no". The applicant alleges that more than 15 people voted and that some lots may have cast more than 1 vote as two voting cards were handed to married couples.

The applicant states that the minutes of the EGM held on 2 September 2005 show 11 owners present. The minutes of the AGM held on 4 February 2006 record 30 owners voting. Of these, 13 owners abstained, 3 recorded a "no" vote whilst 14 recorded a "yes" vote. The applicant states that only owners present at the meeting held on 2 September 2005 would be able to vote on whether the minutes of that meeting were a true and accurate account of the proceedings.

I consider that this matter has been adequately dealt with by order 0484-2006 and motion 2 at the extraordinary general meeting (EGM) held on 14 July 2006 and that there is no benefit in reciting the arguments for and against the granting of the order sought.

The applicant asserts that owners have been asked to pay incorrect amounts in this motion. Lots 1 and 2 are included with the highset lots at 2.43%, $237, instead of with the lowset lots at 2.01%, $202. This amounts to an overcharge of $35 for these two lots. The owners of the highset lots have been undercharged $2.50 each. As lots 1 and 2 were not listed correctly, the percentage calculation for each lot will vary to that proposed by Michael Teys. Further, the applicant alleges that lot 40 was not calculated proportionately to their dwelling as that lot also includes the manager’s office which is a separate building on their lot.

The applicant states that the body corporate workplace health and safety report completed in February 2005 was due for review in February 2006. To date this has not been carried out, even though the paperwork has been handed over to Michael Teys.

The applicant alleges that the correspondence in question contains defamatory material and should not be accessed by virtue of section 149(3) of the Accommodation Module.

On 4 April 2005 14 residents were given permission to park a vehicle in an allocated car space. On 26 March 2006, Domingo Martinez was observed removing the "reserved" signs from some car spaces. The residents were not given seven days written notice of this as required by by-law 2a.

The applicant states that in November 2005, the complex sustained hail and storm damage, which amongst other things, resulted in unit numbers attached to external common property walls being destroyed. In February 2006, the identifying common property numbers for all effected lots apart from lot 31 had their numbers replaced.

Submissions

Submissions in response to the application were sought from all owners (excluding the applicant), the committee and the body corporate manager.

Five submissions were received. Of these, one (by Toni Leigh) supported the applicant and four strongly opposed it. Each of the four opposing submissions (including one by the committee) raised claims that this application is frivolous and vexatious; another one of five dispute resolution applications made to this office by past committee members or their liaisons objecting to the running of the scheme by the administrator and current committee.

In relation to the orders sought, the committee submission was to the following effect:

(ii) The voting results for Motion 1 reflect the actual voting of those persons present and entitled to vote to the best of the committee’s knowledge. Changing the number of people who can vote on confirmation of the minutes serves no purpose, as the applicant does not appear to challenge that they are accurate.

The applicant exercised his right to inspect the submissions and made a reply.

Jurisdiction

This is a dispute between an owner and the body corporate and comes within the dispute resolution provisions of the Act.^[1]

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

(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)).

(ii) An order that voting papers of the AGM be made available to those owners at no charge as these voting papers should have been freely available at the conclusion of the meeting.

In its submission, the committee appears to concede a breach of section 54 by the chairperson, at least in so far as the declaration of voting results at the meeting and inspection of the voting tally sheet, is concerned, offering as reasons, the hostile atmosphere in which the meeting was conducted and a desire to conclude the voting as quickly as possible. Further, the chairperson is stated as having to leave the meeting immediately after its conclusion in order to attend another meeting. This is disputed by the applicant, who states that the chairperson was present for some 15 minutes or so after the conclusion of the meeting.

I do not consider the reasons for failing to comply with section 54 of the Accommodation Module satisfactory. However, I do not consider that the applicant has been significantly disadvantaged by the breach. His assertion that owners were denied the opportunity to request a poll is mistaken in light of the fact that owners have equal contribution schedule lot entitlements. There is some merit to the applicant’s assertion that owners have no way of knowing whether the voting was correct, at least until the minutes of the meeting are distributed. However, if the applicant was sufficiently concerned that the voting was incorrect, he could have applied to inspect the voting tally sheet, or challenged the outcome of certain motions once the minutes were made available to him. The applicant has sought to challenge the outcome of one motion only through this application. In these circumstances, I decline to order in the terms sought by the applicant.

Section 57(1) of the Accommodation Module provides that the body corporate must ensure that full and accurate minutes are taken of each general meeting. Subsection (3) goes on to state what "full and accurate minutes" means, including (b) the names of persons present and details of the capacity in which they attended the meeting.

Although the applicant believes that not all persons present at the meeting were recorded as such, he is only able to name two who weren’t recorded and refers to others generally as "daughter", "gentleman sitting next to me", "3 people representing lot 12". With respect to the applicant, it is now impossible to ascertain with any certainty who was present at the meeting on 4 February 2006 and therefore impossible to grant the order he seeks. The applicant’s concern with this issue appears to be that the vote taken as to whether or not the meeting should be tape recorded may have been different. That is, the vote may have in fact been successful rather than unsuccessful. In my view, this is now irrelevant as it is impossible to now record a meeting held on 4 February 2006.

The applicant argues that only those owners present at the meeting held on 2 September 2005 would be able to vote on whether the minutes of that meeting were a true and accurate account of the proceedings. The applicant’s view is simply not supported by the legislation. There is nothing to prevent an owner who was not present at a meeting from voting on a motion to approve the minutes of that meeting at a subsequent meeting. More importantly, if the applicant was concerned that the minutes of the meeting of 2 September 2005 are inaccurate, or that there was some other flaw with that meeting, he should have specifically challenged it by seeking appropriate orders within the three month time frame permitted by the legislation. In the circumstances, I decline to order in terms sought by the applicant.

I consider that the subject of this order has been adequately dealt with by two events subsequent to the lodgement of this application. Firstly, in Order 0484-2006 the adjudicator, in dismissing an application for an interim order to have motion 2 (Acceptance of Offer of Settlement from Dibbs Abbott Stillman) listed on the agenda of the EGM scheduled for 14 July 2006, declared void, stated that "I am satisfied that the body corporate has discharged its obligation to put the proposed offer to settle the outstanding costs issue to owners for their consideration, and that motion 2, if passed at the meeting to be held on 14 July 2006, will achieve the objective of properly authorising the acceptance of the offer and the means by which to pay it." In making her decision, the adjudicator also found that the applicants’ contention that the settlement offer should be paid from monies "already budgeted" was incorrect because the amount was not approved at the AGM as a result of motion 9 being defeated. The passing of a special levy was found to be necessary if payment of the settlement offer was accepted by owners.

Secondly, motion 2 was passed by a vote of 18 "for", 2 "against" and 2 "abstentions" at the EGM on 14 July 2006. In the circumstances, I decline to order in the terms sought by the applicant.

In its submission, the committee concedes an error was made (although not in relation to lot 40, as also contended by the applicant) but denies that declaring motion 11 void would be an appropriate way to remedy the error. The committee states that the error was genuine, minor and can be easily corrected at the next annual general meeting. Given the amounts involved and the absence of any submission by a party directly effected by the mistake, I agree with the committee. I decline to order in the terms sought by the applicant but expect the committee to rectify the error at the next annual general meeting.

I accept the committee’s submission that a new report has been commissioned. With regard to implementing its recommendations, I consider the submission by the committee that the report would need to be reviewed first so that any expenditure can be properly approved, sensible and appropriate. I decline to order in the terms sought by the applicant.

Section 149(3) of the Accommodation Module provides as follows (bolding my emphasis):

It is important to note that the party in whom the reasonable belief that a record is defamatory lies is the body corporate, not any individual owner. The committee has stated that the police were notified of the incident in question and that they do not believe the material is defamatory. I do not consider that this is an appropriate jurisdiction to determine whether material is defamatory. If the applicant wishes to pursue a claim for defamation, he will need to initiate action in a court of competent jurisdiction. In these circumstances I cannot order in the terms sought by the applicant.

By law 2 provides as follows:

2. Vehicles. The occupier of a lot must not, without the body corporate’s written approval –

The approval must state the period for which it is given. However, the body corporate may cancel the approval by giving 7 days written notice to the occupier.

I do not believe by-law 2 gives the body corporate any authority to allocate specific car spaces on common property to particular occupiers. Such allocations can only be made via the registration of an exclusive-use by-law, or perhaps, by the granting of an appropriate lease.

While I concede that a period of less than seven days notice was given to the applicant, I doubt that the allocation was valid in any event. Further, the applicant has failed to satisfy me of any detriment he has suffered as a result of having been given less than seven days notice of the removal of the "reserved" sign. I question what purpose the granting of the order sought by the applicant would serve. In these circumstances, I refuse to order in the terms sought by the applicant.

9. An order that the Body Corporate supply the external number "31" on the relevant common property wall, as was supplied in February 2006 to other numberings on common property walls which were effected by storm damage.

The parties appear to agree that the numbers in question are common property. As such, the body corporate has a responsibility to maintain them in good condition^[2], or in the event that they are damaged beyond repair, or lost, to replace them. Given that all other effected lots have had their numbers replaced (or re-glued) it appears that it would be reasonable for the body corporate to replace numbers for lot 31. However, as the applicant is not directly concerned with this matter and has failed to demonstrate any detriment suffered by him as a result of lot 31 not having numeric identification, I decline to order in the terms sought.

This application is therefore dismissed in its entirety.

Before concluding, I should note that submissions were made to the effect that this application was frivolous and vexatious. While I have dismissed the application for the reasons above, rather than me considering it frivolous or vexatious, I make the following comments for the benefit of the applicant. In meetings of all kinds, including body corporate meetings, minor procedural irregularities often occur both in the calling and conduct of the meeting. It has been the practice of the courts not to void meetings on the grounds of minor irregularities in procedure, provided that persons entitled to participate in the meeting have not been disadvantaged in properly exercising their right to vote on the matters brought before the meeting. The very detailed provisions of the Modules make it almost inevitable that form 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 bone fide.^[3] With regard to other breaches of the legislation not concerning meeting procedure, this office takes a similar view. In other words, an applicant has to demonstrate some disadvantage they’re suffered as a result of the perceived breach.

^[1] See s.227 & 228
^[2] See s.108 Accommodation Module
^[3] Wei-Xin Chen v. Body Corporate for Wishart Village [2001] District Court (Brisbane) 4080 of 2000.

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

(a)	park a vehicle, or allow a vehicle to stand, on the common property; or
(b)	permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property, except for the designated visitor parking which must remain available at all times for the sole use of visitors’ vehicles.

2.	(i) The papers are available to all owners, not just those specified.
(ii)	The normal search fee should apply, due to the time required by the administrative staff to prepare documents for searching.

1.	A finding that the Body Corporate should have declared the voting of motions at the AGM on 4 February 2006.
2.	(i) An order that the Body Corporate make available voting papers of the AGM held on 4 February 2006 to the three owners (Geoff & Val Ivett and Toni Leigh) who requested to view the papers at the conclusion of the meeting.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Il Villaggio [2006] QBCCMCmr 717 (12 September 2006)