Bayonne [2006] QBCCMCmr 89 (28 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0819-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11299
Name of Scheme:	Bayonne
Address of Scheme:	504 Marine Parade BIGGERA WATERS QLD 4216

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

Rosslyn Mackie & Ian Cheater, the Owner(s) of lot 7

I hereby order that the application for an order that the meeting of 1 May 2005 be invalidated is dismissed. I further order that Cyril Andreassen, Joseph Jurin and Allan Lane are authorised to prepare budgets for consideration by owners at the next annual general meeting and call the next annual general meeting. This authorisation is conditional on a notice requesting nominations for committee positions and submission of motions for consideration at the meeting giving owners at least three weeks to submit their nominations and motions. However, the giving of notices and the holding of the general meeting may be performed later than required by the legislation provided that the meeting is held by 30 April 2006.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0819-2005

"Bayonne" CTS 11299

Application

Bayonne Community Titles Scheme (Bayonne) is a ten lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Rosslyn Mackie and Ian Cheater as owners of lot 7 (applicants) seeking orders against the body corporate for Bayonne (respondent). The applicants are seeking to invalidate a meeting that occurred on 1 May 2005.

Decision

Time Limit

Before considering the merits of the submissions in detail, it is necessary to consider whether there is good reason to waive the failure of the applicant to make this application within 3 months of the date at which the resolution was adopted (Act, 242).

This three month time limit provides certainty for the scheme. Persons inspecting the records prior to purchasing a lot, and any other persons dealing with the body corporate, have some certainty that resolutions passed more than three months previously cannot ordinarily be challenged. It can also assist in bringing closure to any disagreements and encouraging harmonious relationships over the longer term between owners with differing viewpoints.

Having said this, an adjudicator can waive non-compliance with the time limit for "good reason" (Act, 242(3)(b)). What constitutes "good reason" was considered by the District Court in Weeks v Commissioner for Body Corporate.^[1] Judge Dodds stated:

"... the objects of the Act, for instance section 5(a) and (h) militate against too strict or legalistic a view about good reason for waiving non-compliance with the time limit. What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought. The applicant, being the person seeking a waiver, will have the task overall of satisfying the adjudicator that the time limit should be waived in all the circumstances."

Request for extension of time limit

The applicants request that the time limits be waived in this instance. The application was lodged over six months after the meeting. However, the applicants say that the delay is due to the applicants seeking copies of the minutes of the meeting. The applicants have provided copies of correspondence between the applicants’ solicitors and the body corporate secretary concerning this issue covering the period between 8 June 2005 and 11 August 2005 .

On balance, the applicant has not satisfied me that there is good reason to waive non-compliance with the time limit. The application was made more than three months after the applicants received the replies from the secretary that no minutes of meeting were recorded and it was merely a meeting of concerned owners.

Further, the dispute about the validity of the meeting of 1 May 2005 appears to be a matter of miscommunication more than a matter for which legal redress is necessary or appropriate. In short, there seems to be no dispute that the meeting of 1 May 2005 was not a meeting at which any legally binding decisions were made on behalf of the body corporate. A letter dated 12 April 2005 invited owners to attend a meeting on 1 May 2005 and indicated that the meeting was to transition the body corporate from management by The Body Corporate Headquarters to self management. This letter indicated that a committee needed to be elected and that house rules and by-laws needed to be amended. However, it is not possible to make legally binding decisions of the body corporate in these circumstances without formal meetings and formal motions being put forward. Submissions indicate that owners present at the meeting of 1 May 2005 realised the meeting did not meet with formal requirements and an informal discussion was held rather than any decision making binding upon the body corporate.

Statutory declarations indicate that Cyril Andreassen, Joseph Jurin and Allan Lane had all been elected as committee members at the earlier annual general meeting on 21 February 2005 and that the minutes of that meeting incorrectly showed only two persons were appointed. I accept these statements but acknowledge that the incorrect minutes were obviously highly misleading to the applicants. These minutes should be corrected at the next general meeting.

The other concern raised by the applicants was that the meeting of 1 May 2005 had altered the by-laws for the scheme without proper procedures being followed. This concern is also the result of miscommunication with the letter inviting owners to attend indicating that the by-laws needed to be changed but no change of by-laws being registered as a result of the meeting. Any house rules or changes to by-laws will have no legal effect unless they are recorded as changes to the community management statement.

It does appear that the above miscommunications, along with complaints about the behaviour of former tenants of the applicants, have resulted in a significant deterioration of relationships including allegations of threats of violence. I would caution all parties that if any threats of violence have been made then they are completely inappropriate and a matter for the police. However, I understand that the tenants who were apparently the cause of poor relations between the parties have now left. I would therefore encourage the parties to make efforts to avoid and resolve any future misunderstandings. In this regard, I would encourage the parties to carefully consider the tone of future written or other communications.

Upcoming Meeting

The minutes of the previous annual general meeting indicate that the financial year for Bayonne runs from 1 December to 30 November. This means that prior to 30 November 2005 the committee should have written to all owners giving them at least three weeks to submit motions and committee nominations for the annual general meeting (Standard Module 13, 41). The next step would involve providing written notice of the meeting to owners, including voting papers and all motions for consideration (Standard Module 42, 43). Each owner can then exercise their vote by returning their completed voting papers or attending the meeting.

I am concerned by a statement provided to this office that the next annual general meeting has been set down for 19 March 2006. This meeting would be outside the legislative time frame which requires the annual general meeting to be held within three months after the end of the body corporate’s financial year (Standard Module, 60).

An owner does have a right to expect reasonable compliance with legislative requirements. I understand that committee members volunteer their time and it would be reasonable to expect that owners who are concerned about compliance with the requirements for calling a meeting would offer assistance with preparing documentation for the meeting before lodging a dispute resolution application. However, I am concerned about the proposed late holding of the meeting and think it appropriate to authorise the holding of that meeting late only subject to owners being given an opportunity to submit new motions and committee nominations.

This would mean that there is insufficient time for proper notice to be given by the proposed meeting date. I will authorise the holding of the meeting late provided that it is held by 30 April 2006.

Order

For these reasons, I make the order above.

If committee members wish to seek some additional information on requirements for calling the general meeting then they can telephone the information service provided by this office on 1800 060 119.

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^[1] District Court (Maroochydore), Appeal 13/99, Judge Dodds at pages 4-5.