Surfers Palms North [2007] QBCCMCmr 12 (9 January 2007)

Last Updated: 15 January 2007

REFERENCE: 0888-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20846
Name of Scheme:	Surfers Palms North
Address of Scheme:	2 St Kevins Court BENOWA QLD 4217

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

Dr. Ian Lochlin of the Body Corporate Committee

I hereby order that the application for an order to dismiss the ruling to allow the EGM of order No 767A-2006 as the circumstances that related to that order being made have changed and are no longer relevant. is dismissed .

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0888-2006

"Surfers Palms North" CTS 20846

The Scheme

Surfers Palms North CTS 20846 is a 61 lot scheme registered under the Body Corporate and Community Management Act 1997 and operating under the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

Application

An application signed by Ian Lochlin was purportedly lodged on behalf of the body corporate committee for this scheme, seeking relief from an earlier order requiring the body corporate to convene an extraordinary general meeting no later than 27 November 2006.

On 5 October 2006, Order 767-2006 was made, invalidating an extraordinary general meeting held on 13 September and requiring the body corporate to reconvene the extraordinary general meeting no later than 27 November 2006.

That dispute arose following the issue of a requisition notice pursuant to section 59 of the Accommodation Module Regulation dated 18 August 2006, resulting in a notice of an Extraordinary General Meeting, scheduled for 13 September, being sent to all owners. Although the committee withdrew the notice of meeting at the last minute, a group of 9 persons purported to hold an extraordinary general meeting on 13 September. Following lodgement of dispute resolution application 767-2006, an order was made invalidating the purported meeting of 13 September and requiring the body corporate to reconvene the extraordinary general meeting no later than 27 November 2006.

The applicant submits that an EGM is no longer required as the conflict which gave rise to the requisitioned EGM has now been resolved. It is submitted that it would be a waste of time and money to convene an EGM at the end of November when the financial year for the scheme ends in January and the AGM must be held within 3 months of that date.

The applicant sought both Interim and Final orders and while I dismissed the request for an Interim Order, I referred the matter back to the Commissioner to be administered in accordance with the Act, and the normal procedures of this Office, including giving all lot owners the opportunity to make further submissions. I took this step in order to give all interested persons adequate opportunity to make any further submissions that were considered relevant to the matter in issue.

SUBMISSIONS

As mentioned in my Interim Order, submissions were sought pursuant to section 243 of the Act, from members of the body corporate and the body corporate manager. Those submissions are detailed more fully in the Interim Order but for completeness are also summarised below.

The body corporate manager made the following submissions:

• As a result of Order 767-2006, all owners were invited to submit motions and nominations for the proposed EGM;
• The positions of Chairperson and Treasurer were uncontested;
• as the financial year ends on 31 January, an AGM is due to be held within 3 months of that date;
• It is difficult to see any benefit to anyone in requiring an EGM to be held.

An individual lot owner made the following submissions:

• The ordered EGM was never called and the issues leading up to the requestioned meeting have not been resolved;
• This EGM was requisitioned by a group of more than 30 lot owners due to their dissatisfaction with the actions of the current committee;
• The AGM is due to be held by the end of March and based on their current performance it is highly likely that the committee will also cancel that meeting;

As part of my consideration of the request for Final Orders, further submissions were sought. These submissions tended to restate many of the issues raised in the earlier submissions and did not really raise any matters relevant to the issue at hand – why the earlier Adjudicator’s order should be overturned.

The body corporate committee made a submission with certain attachments which included the following information:

• Ian Lochlin is now the Chairman of the Body Corporate Committee;
• committee members are now effectively working together;
• a "police investigation" is underway.

A member of the Committee suggested that the "requisition for this EGM was fuelled by malicious and mischievous means" and that it should not be allowed to "spill a properly functioning committee".

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

As stated above, interested parties were provided with a further opportunity to present evidentiary material which may have relevance to the issue at hand – why the earlier Adjudicator’s order should be overturned. I have been provided with a significant amount of material providing
background to the history of disputes in this scheme but very little material of direct relevance to this application.

On receipt of this application I requested a copy of the minutes of the committee authorising the bringing of this application. Although I was eventually provided with a copy of the minutes of committee meeting held on 25^th October 2006, I note that these minutes do not contain any specific resolution authorising the lodgement of this dispute resolution application.

To date I have not been provided with evidence of a committee resolution authorising the lodgement of this application but nevertheless, even if I were to assume that the application is valid I am unable to make the order sought. In my opinion, the principle of "functus officio" applies to the present application as the duty of an Adjudicator has been discharged under the Act in Order 767-2006 and another adjudicator cannot add to, amend or detract from what has been done.

This rule gives finality to a ruling by a court or decision-maker and prevents that court or decision-maker from again dealing with the same subject matter. In this case an Adjudicator has effectively exercised powers under the Act to finally resolve the dispute and there is no further role for another Adjudicator to intervene in respect of the dispute. I therefore have no authority to review or reconsider an issue that has been determined in a previous order, unless directed by a court of competent jurisdiction.

It is clear from recent Federal decisions such as

Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 and
Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400

that one who is functus officio is precluded from again considering the matter. This is so even where new arguments or evidence are presented as the appropriate remedy in such circumstances is to exercise ones rights of appeal.

Accordingly the application must be dismissed.