Focus [2007] QBCCMCmr 240 (27 April 2007)

Number of Scheme:	12996
Name of Scheme:	Focus
Address of Scheme:	114 The Esplanade SURFERS PARADISE QLD 4217

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

I hereby order that the EGM scheduled for 28 April 2007 may proceed;

I further order that motion 3 (including any amendments made pursuant to section 55 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 may be voted upon at the EGM;

I further order that owing to the possibility that a resolution based upon motion 3 could be invalid, the Body Corporate is to refrain from carrying out any resolutions based on that motion, including execution of a new Body Corporate Administration Agreement until a final order has been made in respect of this dispute resolution application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0344-2007

"Focus" CTS 12996

THE SCHEME

"Focus" Community Titles Scheme 12996 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module). There are125 lots and the buildings are created under a Building Unit Plan of subdivision.

On 26th April 2007, David & Susan DeMoor, co-owners of Lots 46 & 49 (the Applicants) filed a dispute resolution application with the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act).

The applicants state that although a meeting of the committee was held on 17 March 2007, they were not provided with notice of the meeting or a copy of the agenda for the meeting as required by relevant provisions of the Accommodation Module regulation.

In particular, the applicants refer to the following provisions:

Section 26 (3) Also, advice of the proposed meeting--
(a) if the body corporate maintains a notice board--must be placed on the notice board; and
(b) must be given to each lot owner individually, other than a lot owner who--
(i) has instructed the secretary that the lot owner does not wish to be given advice of committee
meetings; and
(ii) has not withdrawn the instruction.
(4) The advice mentioned in subsection (3)--
(a) must state when and where the meeting is to be held; and
(b) must be accompanied by the agenda for the meeting; and
(c) must be placed on the notice board and delivered to the residential or business address of a lot owner when notice of the meeting is given to committee members.

Section 28 (1) The notice calling a committee meeting must include an agenda stating the substance of issues to be considered at the meeting.

The applicants state that he did not receive notice of the meeting and neither did two other lot owners Messrs Hall and Doorey. They further state that when they questioned the Chairman regarding the lack of notice, he was advised that a notice was placed on the noticeboard and this was sufficient. It is argued that as this was not sufficient notice of the meeting, any decisions made at that meeting are invalid.

At the subject meeting the following motion was carried by a majority of 4 votes to 1:

Moved by Steven Stojanovic that an EGM be called to consider the resolution passed on 27 December 2006 appointing PBCM as Body Corporate Managers as it is considered to be an invalid motion put to the AGM in that the motion was not authorised or submitted by the committee to the AGM.

As a result of this motion being carried, Notice of an EGM was issued by Strata –Jem Pty. Ltd. on 5 April 2007. The applicant believes that Strata –Jem Pty. Ltd. has been engaged to hold the EGM at a cost of $2,800 and in addition, Strata-Jem is one of the three candidates for appointment as body corporate manager on the secret voting paper, and further, PBCM is not included as a candidate.

Termination of PBCM
Submitted by the Committee – A Committee Explanatory Schedule is included in the Notice of Meeting –
THAT the motion passed at the AGM on 27 November 2006, approving the appointment of Bellborough Pty. Ltd. (trading as PBCM) as Body Corporate Manager be rescinded as the motion was not authorised or submitted by the committee to the AGM.

The applicants submit that Motion 3 is invalid as motions do not have to be authorised by the Committee. In this regard the applicants refer to Section 39 of the Accommodation Module Regulation which sets out the process by which agenda motions can be submitted and provides as follows:

39 Opportunity to submit agenda motions
(1) A motion for consideration at a general meeting of the body corporate may be submitted at any time by--
(a) a member of the body corporate; or
(b) the committee.
(2) If a motion is submitted, including by a member of the body corporate in response to an invitation under subsection (5), it must, subject to subsections (3) and (4), be included on the
next general meeting agenda on which it is practicable to include the motion.
(3) A motion submitted by a member of the body corporate may be included on the agenda for an annual general meeting only if the secretary receives the motion before the end of the body
corporate’s financial year immediately preceding the meeting.
(4) However, a motion of a following type must not be included on the agenda for a general meeting if the motion’s inclusion would result in the body corporate considering a motion of
that type more than once in a financial year for the body corporate--
(a) a motion proposing that a regulation module be applied to the scheme that is different from the regulation module identified in the scheme’s community management statement;
(b) a motion proposing that the remuneration paid to a particular service contractor be changed;
(c) a motion proposing that the engagement of a person as a service contractor, or the authorisation of a person as a letting agent, be amended if, as a result of the amendment, the engagement or authorisation would include a right or option of extension or renewal.
(5) If a notice is forwarded to members of the body corporate inviting nominations for committee member positions to be filled at an annual general meeting of the body corporate, the
members must also be invited to submit motions for inclusion on the agenda for the meeting.

The applicant submits that pursuant to section 39 there is no requirement for a motion to be authorised by the committee pursuant to being included on the agenda. Motions can be put forward by members or the committee and do not need to be authorised by the committee for inclusion on the agenda.

As stated above, the Notice of AGM held on 27 November 2006 was sent by PBCM to owners without it first being submitted to and approved by the committee.

It is argued by the applicants that under the Administration Agreement PBCM has all the powers and authority of the body corporate., the committee and executive members of the committee.

It is also argued that the Chairman should have taken action to rule the motion invalid at the AGM or otherwise have taken action within 3 months to bring a dispute resolution application with the Office of the Commissioner for Body Corporate and Community Management.

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)).

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. The examples included in the Act under section 279 are suggestive of the
circumstances where an interim order might be made i.e. an interim order is generally of a temporary nature to maintain the status quo.

DETERMINATION

It is argued, inter alia, that as members of the body corporate were not provided with notice of the committee meeting held on 17 March, the decision of the committee to hold the EGM scheduled for 28 April 2007, and indeed any decisions made at that meeting are invalid.

This application, which concerns an EGM scheduled for 28 April 2007, was lodged with this Office on 26 April and received by me on 27 April. Consequently, I have not had sufficient time to call for submissions from the committee and other members of the body corporate pursuant to section 243 of the Act . Nor have I had the opportunity to independently verify certain allegations made in the application.

At this point in time I believe that the most appropriate course for me to take is to allow the EGM to proceed, and to allow motion 3 to be considered and voted upon at the EGM, but that the body corporate is not to act upon any resolution based upon that motion or enter into any new Body Corporate administration Agreement until a final order has been made in respect of this dispute resolution application.

I therefore propose to make the following orders:

This matter will now be investigated in accordance with the usual processes undertaken by this office and a final order regarding the application will be made in due course.

Number of Scheme:	12996
Name of Scheme:	Focus
Address of Scheme:	114 The Esplanade SURFERS PARADISE QLD 4217

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

I hereby order that the body corporate committee is authorised to temporarily engage Strata Jem Pty. Ltd. in the role of body corporate manager on a month to month basis until a Final Order is made in respect of Dispute Resolution application 344-2007.

I further order that Strata Jem Pty. Ltd. shall be paid a monthly fee which is pro rata the annual fee approved by the unit proprietors at the EGM held on 28 April 2007.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0344-2007A

"Focus" CTS 12996

The purpose of this Supplementary Interim Order and Statement of Reasons for Decision is to remove any uncertainty which may arise regarding the effect of Interim Order 344-2007I dated 27 April 2007.

The Scheme

"Focus" Community Titles Scheme 12996 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module) consisting of 125 lots created under a Building Unit Plan of subdivision.

On 26th April 2007, the owners of Lots 46 & 49 filed a dispute resolution application with the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act) seeking the following Interim Orders:

It was argued inter alia, that as members of the body corporate were not provided with notice of the committee meeting held on 17 March, the decision of the committee to hold the EGM scheduled for 28 April 2007, and indeed any decisions made at that meeting, are invalid.

In my Statement of Reasons for Decision dated 27 April, I noted that the application concerned an EGM scheduled for 28 April 2007, was lodged with this Office on 26 April and received by me on 27 April. As there was insufficient time to call for submissions or to otherwise independently verify allegations made in the application for the purposes of section 269, I decided that the most appropriate course of action was to allow the EGM to proceed, but to order the Body Corporate not to carry out any resolutions based on motion 3 which concerned termination of the existing body corporate manager and replacement with a new body corporate manager.

The Interim Orders made on 27 April therefore included the following:
that owing to the possibility that a resolution based upon motion 3 could be invalid, the Body Corporate is to refrain from carrying out any resolutions based on this motion, including execution of a new Body Corporate Administration Agreement until a final order has been made

While it was not intended that the Interim Order would preclude the body corporate from engaging Strata Jem Pty. Ltd. or any other body corporate manager to act on a month to month basis until this dispute resolution application is finalised, concern has been raised by the body corporate that the Interim Order could be interpreted so as to have this effect.

The Body Corporate committee has therefore resolved to seek a Supplementary Order approving the "engagement by the Committee on a month to month basis of a practising Body Corporate Manager such as Strata Jem Pty. Ltd., until a final order is made."

I note that Strata Jem Pty. Ltd. has agreed to accept the appointment on a month to month basis at a monthly fee which is pro rata that of the annual fee approved by the unit proprietors at the EGM held on 28 April 2007.
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

(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
The body corporate committee is authorised to temporarily engage Strata Jem Pty. Ltd. in the role of body corporate manager on a month to month basis at a monthly fee which is pro rata that of the annual fee approved by the unit proprietors at the EGM held on 28 April 2007, until a Final Order is made in respect of Dispute Resolution application 344-2007.

•	That the Committee meeting held on 17 March 2007 is invalid; and
•	That the decision to hold the EGM made at the committee meeting held on 17 March 2007 is also invalid

•	That the EGM scheduled for 28 April be cancelled; and
•	That motion 3 be declared invalid.

•	That the Committee meeting held on 17 March 2007 is invalid; and
•	That the decision to hold the EGM (scheduled for 28 April 2007) made at the committee meeting held on 17 March 2007 is also invalid; or

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Focus [2007] QBCCMCmr 240 (27 April 2007)