Galen House [2007] QBCCMCmr 200 (10 April 2007)

Last Updated: 24 April 2007

REFERENCE: 1041-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11646
Name of Scheme:	Galen House
Address of Scheme:	142 Queen Street SOUTHPORT QLD 4215

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

Amalgamated Megadynamics Pty Ltd, the Owner(s) of lot 2

I hereby order that the application for orders, including relating to the calling of a meeting and supply of documentation about a building contract, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1041-2006

"Galen House" CTS 11646

Application

Galen House Community Titles Scheme (Galen House) is a 2 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module).

This application is by Rodney Michael Tracey as director of Amalgamated Megadynamics Pty Ltd, owner of lot 2 (applicant) seeking orders against Janette Watson, owner of lot 1 and John Watson, occupier of lot 1 (respondents). The applicant is seeking a number of orders.

Decision

An adjudicator may make an order that is just and equitable in the circumstances to resolve certain disputes in the context of a community titles scheme (Act, 276).

There has been a history of disputes between the owners of Galen House. In September 2005 an adjudicator ordered the body corporate convene a general meeting to adopt a budget and determine contributions.^[1] In September 2006 an adjudicator ordered the applicant to pay to the body corporate the amount of $2,435.90, being 50% of the cost of variations to a building contract.^[2] In March this year an adjudicator made an order in relation to the signing of a cheque relating to the same variations to the building contract.^[3]

The present application attaches a letter dated 27 October 2006 from the applicant to one of the respondents suggesting that "If we adhere to the act we should be able to avoid any future problems", "I presume you will now return the cheque book to the Galen House premises and you will also need to make out a cheque for $1,000 to date from the Body Corporate account. The Body Corporate will need to see all the relevant documents and I think these should be filed on the premises" and "The insurance of the building will be due very shortly. I think we should have a meeting within the next few weeks. This could be the annual general meeting".

The applicant seeks various orders including that the owner of lot 2 supply certain documents, return the cheque book to body corporate premises, cease refusing to countersign cheques, cease accusing the applicant of failing to pay his bills, and take action to convene the annual general meeting. The applicant also seeks an order that both members familiarise themselves with and abide by the Act and that the occupier of lot 2 cease interfering with the function of the body corporate or giving offensive messages.

Most of the orders sought are of a very general nature and I do not consider it appropriate or beneficial to make an order, for example, that both owners comply with the Act. There are two matters of significance raised in the material. The first of these is that the applicant has a right to demand a general meeting be called. The second of these is that the applicant has a right to access the body corporate records.

Relevant legislative provisions include:

• An annual general meeting must be held within 3 months after the end of each of the scheme’s financial years (Standard Module, 60);
• If a notice specifying motions and asking for an extraordinary general meeting to consider the motions is signed by the owners of at least 25% of all the lots and delivered to the secretary then the secretary must call an extraordinary general meeting within 14 days to be held within six weeks (Standard Module, 61);
• If the secretary fails to call the extraordinary general meeting as required above, another committee member can be required to call the extraordinary general meeting (Standard Module, 61A);
• The body corporate must allow all committee members reasonable access to the body corporate’s records (Standard Module, 150).

I do not consider it necessary or appropriate to grant the applicant an order requiring the calling of a general meeting. The applicant has not provided details of when the financial year of the body corporate ends or whether an annual general meeting is due to be held shortly. However, as the applicant is a 50% owner in the scheme the applicant can at any time list motions he wants to be considered and require an extraordinary general meeting to be called to consider those motions. If the other owner fails to call the meeting then the applicant, as the other committee member, can call the meeting. If the other owner fails to attend the meeting then the applicant can simply exercise its vote to pass all the motions. If both owners attend then owners will have an opportunity to discuss the proposed motions and can agree to amend any motions as necessary (Standard Module, 57).

Relating specifically to body corporate records and the keeping of the cheque book, the applicant should propose a motion specifying where the body corporate records should be kept and providing for how both owners will have access to these records. Both owners then have an opportunity to discuss this proposal and agree on the best possible arrangements.

The legislation recognises self management as an inherent aspect of community titles schemes (Act, 4). It is somewhat ironic that the applicant has sought an order that members of the body corporate familiarise themselves with and abide by the legislation yet the applicant has failed to take advantage of legislative procedures that would assist in progressing the issues raised in this application. The body corporate for Galen House is comprised only of two owners and it would be expected that these owners could resolve most issues between themselves without the need for constant applications for adjudication. Certainly if both owners could agree on an appropriate place for storage and access to body corporate records and could ensure that no body corporate funds were spent without a written resolution signed by both owners then future disputes should be able to be avoided.

Order

I am not satisfied that it is necessary or appropriate to make any order in respect of the present application as it is within the power of both owners to take steps to resolve issues as required by the legislation. If owners cannot agree on an issue and are uncertain of what provisions of the legislation impose relevant obligations then I would encourage them to telephone the information service provided by this office on 1800 060 119.

For these reasons, the application is dismissed.

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^[1] Galen House, Order 0379-2005, J Underdown, 29 September 2005.
^[2] Galen House, Order 0313-2006, ID Rosemann, 25 September 2006.
^[3] Galen House, Order 1026-2006, MA Ricardo, 22 March 2007.