Peppercorn Place [2006] QBCCMCmr 95 (20 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0096-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20700
Name of Scheme:	Peppercorn Place
Address of Scheme:	20 Hellawell Road SUNNYBANK HILLS QLD 4109

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

Phillip Isaacs, Patricia Isaacs and Zoe Pullen, the co-owners of lot 25

I hereby order that the annual general meeting scheduled to be held at 5.00pm on Tuesday 28 February 2006 shall be postponed until further order. I further order that AD Body Corporate management shall continue as body corporate manager for this scheme on a month to month basis from 1 March 2006 until further order. I further order that the body corporate manager shall, within 2 days of the date of this order, forward a copy of this order and the accompanying statement of reasons for decision, to all owners.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0096-2006

"Peppercorn Place" CTS 20700

INTERIM ORDER SOUGHT

The applicants have sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the annual general meeting scheduled to be held on 28 February 2006 being the last day of the body corporate’s financial year be put on hold until such time as AD Body Corporate Management takes appropriate steps to amend the agenda that issued on 3 February 2006 with the inclusion of all motions in the agenda of the annual general meeting and an appropriate notice is given to all lot owners of the correct agenda of the annual general meeting in accordance with section 41(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997.

JURISDICTION

The application evidences a dispute between the owners of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).

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)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

SCHEME DETAILS

Peppercorn Place is a community titles scheme registered under a group titles plan (now described as a standard format plan) on 12 April 1990. The scheme comprises 38 lots and common property and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicants have provided material supporting their claim that certain motions submitted by them to the secretary of the body corporate by the end of the financial year have not been included on the agenda of the annual general meeting under section 41(3) of the Standard Module. Amongst the motions submitted by them was a motion that the body corporate takes all necessary steps not to renew the agreement with the current body corporate manager, AD Body Corporate Management.

The dispute resolution application was lodged in the Commissioner’s office at 11.15am on 13 February 2006. The application was referred to me by the Commissioner under section 247 of the Act on 14 February 2006. At my request the applicants provided further information (a copy of the notice of annual general meeting and all associated documentation). The applicants also sought an amendment to the application, which was approved. A teleconference between the applicants and the body corporate manager was then arranged to take place at 8.30am on 17 February 2006.

Mr Phillip Isaacs, one of the applicants, and Mr Barry Burton, the principal of AD Body Corporate Management, participated in the teleconference.

Mr Burton advised me that the motions submitted by the applicants were not included on the agenda of the annual general meeting because they were not received in his office in time (i.e. by the end of the body corporate’s financial year). Mr Burton stated that although it had been stated that the motions had been submitted to the secretary by the end of the financial year, he had no way of knowing when they were actually received.

Mr Burton also stated that no committee meeting had been held to confirm the agenda of the annual general meeting.

Mr Isaacs stated that he simply wished all matters to be placed before owners for their consideration.

Mr Burton advised me that other members of the committee wished to have an opportunity to express their views before the application was finally determined. I told the parties that the members of the committee would be invited to respond to the application, and would have 7 days within which to do so.

DETERMINATION

There are a number of matters which require to be addressed in this application. Before doing so, I wish to give all members of the committee the opportunity to be heard, and an invitation to lodge a submission has today been forwarded to the body corporate manager for distribution to those members. The submission period closes on 27 February 2006.

The annual general meeting is scheduled for 28 February 2006. I consider that there are important issues to be resolved before that meeting can proceed, and in the circumstances I have ordered that the meeting be postponed until further order. I have made this order at this time to give owners maximum notice of the postponement, and thereby hopefully minimise any inconvenience which might arise as a result.

I have taken into account that levy contributions have been pre-approved for the period 1 March 2006 to 31 May 2006, and also that body corporate insurances are in place to 1 December 2006 and simply require confirmation. There is therefore no inconvenience to the body corporate in respect of these matters if the meeting is postponed for a short period

I note that at the annual general meeting held on 11 February 2005 AD Body Corporate Management was appointed as body corporate manager for a period of 1 year commencing on 1 March 2005. That appointment therefore expires on 28 February 2006. To avoid any inconvenience to the body corporate and to ensure continuity of its day to day administration I have ordered that the appointment of AD Body Corporate Management shall thereafter continue on a month to month basis until further order.