Acacia Grove [2007] QBCCMCmr 305 (22 May 2007)

Last Updated: 29 June 2007

REFERENCE: 0058-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22685
Name of Scheme:	Acacia Grove
Address of Scheme:	28 - 30 Ancona Street Carrara Qld 4211

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

Natasha Schuba, the Owner(s) of lot 2

I hereby order that the application for an order to: 1. Invalidate the AGM 2. re-convene an AGM in accordance with the Act and, 3. appoint an independent administrator to carry out this task and further because we believe allegations aired at public meetings that BCM's look after each other (scratch each other's backs in such matters as this) that the administrator not be a BCM or member of the CTIQ or Qrama, or be an associate of any BCM or of the CTIQ or Qrama or for that matter the UOAQ which has formal alliance with CTIQ and Qrama, and that the administrator be drawn from the Unit Owners Alliance and further. 4. appoint Mr. Colin Lamont, Chairman of the alliance, whose fee would be $100 per hour, compared to the usual $175 plus charged by BCM's, who is known well to the Commissioner and to the hierarchy of your department of Fair trade as a consultant and trusted adviser to the officers forming the panel to review the BCCM Act, to be the person appointed to administer calling the new AGM. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0058-2007

"Acacia Grove" CTS 22685

Application

Natasha Schuba the owner of Lot 7 (the applicant) has sought the follows orders of an adjudicator under the Body Corporate and Community Management Act 1997:

1.	Invalidate the AGM

2.	re-convene an AGM in accordance with the Act and,

3.

appoint an independent administrator to carry out this task and further because we believe allegations aired at public meetings that BCM's look after each other (scratch each other's backs in such matters as this) that the administrator not be a BCM or member of the CTIQ or Qrama, or be an associate of any BCM or of the CTIQ or Qrama or for that matter the UOAQ which has formal alliance with CTIQ and Qrama, and that the administrator be drawn from the Unit Owners Alliance and further.

4.

appoint Mr. Colin Lamont, Chairman of the alliance, whose fee would be $100 per hour, compared to the usual $175 plus charged by BCM's, who is known well to the Commissioner and to the hierarchy of your department of Fair trade as a consultant and trusted adviser to the officers forming the panel to review the BCCM Act, to be the person appointed to administer calling the new AGM.

The Scheme

Acacia Grove CTS 22685 is a 98 lot scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). The scheme is designed for residential purposes.

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)).

Grounds

The applicant raises the following grounds:

• the present committee (some of whom were members of the prior committee) have no recollection of receiving a notice of a budget meeting or attending a meeting to receive nominations and motions;
• the present committee is not aware of any minutes in relation to the meetings identified in their first point and assume no such meetings took place;
• they say it appears the body corporate manager prepared the budget without consultation, but still included narrative such as "the committee suggest an increase to levies" in the explanatory notes;
• they advise that when the agenda for the annual general meeting arrived they were unschooled in the Act and did not notice the irregularities;
• they say that without a meeting to receive nominations, they did not know about the vacancies for secretary and treasurer and would have arranged for nominees had they known;
• they say they did not realise that some of the motions were loosely worded, but had there been a meeting they would have clarified them;
• they say that failure to call the budget meeting meant that they did not know they could terminate the body corporate manager’s agreement with 3 months notice or assess and object to clauses in the new agreement proposed to start for another year from the date of the annual general meeting;
• they say they were also deprived of the opportunity to nominate an alternate body corporate manager at annual general meeting, given there are cheaper services available;
• they say that when the body corporate manager advised there was not a quorum and that the meeting would be reconvened in the same place one week later but that those in attendance need not come second time, no-one questioned this advice;
• they complain the body corporate manager did not advise those not in attendance of the reconvened meeting;
• the applicant says "as a consequence of that Ms. M Beckel who attended the first meeting did not attend the adjourned meeting although as nominee for the committee she would have if she had known the details";
• the applicant says that at the first meeting she was represented by her mother. She says that the body corporate manager "did not inform those who attended they were entitled to vote at the meeting and only counted voting papers". She says that on approaching the body corporate manager about handing in voting papers, she did not get a clear response;
• they say the body corporate manager is protecting the caretaker by chairing the meeting and then ruling the following motions out of order:

14. "Common Ground – e.g. Up keep of garden area, not kept up to standard or safety other than entrance area. Some areas are a fire hazard, not maintained";
15. "Entrance area’s to units displaced with lounges, at times barbeque and lots of toys, these should be backyard of units, this display de-values our complex";
16. To grant electricity fee (portion for public usage) for on site manager. Manager has presented this issue back 2004, just never followed up. The power bill is $500-700 excessive due to public use.

• They say the new committee had been intending to breach the caretaker and that ruling the motions out of order indicates there may be collusion between the body corporate manager and the caretaker;
• They say that while not well worded the meaning was clear and that in properly conducted meeting the motions could have been amended in accordance with Section 55 of the Accommodation Module by adding "that the meeting note";
• They say that as the proposers of both meetings were in attendance at the first meeting, they were deprived of this opportunity by the adjournment;
• They raise other issues in relation to the performance of the caretaker that are beyond the jurisdiction of a departmental adjudicator;
• They say that Ms Beckel and the applicant’s nominee may have made nomination for the secretary/treasurer positions had they known of the vacancy. They say that Ms Beckel now occupies that position through a "s. 33 decision" made by the committee;
• They say that the inclusion of a Division 10 appointment (body corporate manager) under Motion 17 indicates deceit and indicates a desire to control the all the finances of the Body Corporates he assists;
• they say that despite the explanatory note, no-one knew the impact of motion 17;
• they say that the normal process for a Division 10 appointment is to go through two attempts at electing a committee at general meetings and that Division 10 should only be introduced if two such attempts fail;
• they conclude that they have been manipulated by a body corporate manager who is seeking to seize control of the Body Corporate’s administration.

Submissions

8 submissions were received from lot owners, including the caretaker and 3 committee members. Unsurprisingly the submissions made by committee members all supported the application and the one by the caretaker opposed the application. The caretaker has dedicated a lot of effort to defending her reputation, however as stated I do not have jurisdiction regarding this issue.

Of the 4 remaining submissions from lot owners, 2 opposed the application and one supported the application. Another chastised this office for not providing greater guidance on how a submission should be made and declared her support and confidence in the committee.

The body corporate manager also made a submission. Like the applicant’s grounds, the body corporate manager’s submission is quite detailed. It is summarised as follows:

• the body corporate manager had not been aware there was a rift or concerns with the now chairperson as Ms Schuba had been into their office on pleasant terms as recently as 5 April 2007;
• they observe that if the annual general meeting is invalidated, actions of the committee in the interim will be invalidated, including this application;
• given that a functioning committee is in place, there is no need for an administrator;
• they advise their hourly fee is in $132 and not $175 and never had been $175;
• they advise they approached the exiting chairperson for the time and date of a budget meeting, however despite a number of attempts none was forthcoming. He in fact moved out before the annual general meeting;
• they say the outgoing chairperson told the body corporate manager to simply organise the annual general meeting;
• they note there was no budget meeting in 2005 and there was no budget meeting achieved in 2004 when they tried to use a flying minute technique to achieve a quorum. There was only one reply;
• they observe the applicant was also a member of the committee in 2004 and 2005;
• they observe that nominations and motions were called for in accordance with the Act for the 2006 meeting. They say this is evidenced by the receipt of nominations and motions for inclusion on the agenda;
• they advise the budget was prepared with the benefit of historical performance of the scheme, with attempts to recoup shortfalls that had been occurring each year;
• they advise that the payments causing the shortfalls were due to invoices signed off by the committee as the body corporate manager does not make payments without specific authorities;
• they say that the chairperson is the contact for the caretaker. They acknowledge they necessarily have contact from time to time, but it is limited to passing on information from the committee or in terms of the Act;
• the annual general meeting of 2006 received audited accounts;
• they advise they believe they acted in the best interests of all owners in trying to present a balanced budget;
• they point out that Section 40A(5)(a)(i) says that the voting paper must state the motion in the form in which it was submitted without amendment;
• they also note they were not accompanied by explanatory notes;
• however they have tallied the votes that were received in relation to the motions and note they were all "resolved" in the affirmative;
• they say they were out of order because they were statements rather than motions but they still served to make owners aware of the content;
• they say that as a courtesy, the owners who submitted these motions had been forewarned they were not in an appropriate format;
• as motions has been called for, owners did have the opportunity to submit motions for an alternate body corporate manager;
• they observe they were reappointed with a vote of 11 to 4, with 2 of the present committee among the affirmative voters;
• they say their fees are very much in line with industry standards;
• they observe that the applicant is unable to make first hand observations in relation to the first meeting as she had been unable to attend personally;
• they note that there has only been one quorum achieved for the scheme since it was established in the late 1990s;
• they state the applicant was fully aware of the procedures relating to adjourned meetings as she had been at both the 2004 and 2005 meetings which were both reconvened;
• they advise that when the adjournment was advised, those present were also advised of the method of ensuring their votes would be counted at the adjourned meeting by submitting voting papers;
• they say that they cannot state why the applicant’s representative did not submit voting papers but observe that other attendees at the original meeting did, including one of the other current committee members;
• They state that the chairperson was not at the annual general meeting and it is normal practice for the body corporate manager to chair the meeting in these circumstances;
• They say the applicant’s grounds that the pre-AGM meeting would have clarified the motions, contradicts her grounds that the meaning was clear;
• They note that had the ability under Section 55 to amend the motions been invoked, then votes cast by voting paper would need to have been counted as no votes and the motions would have been lost in any event;
• They deny any collusion with the caretaker;
• They say all present at the meeting knew that the committee positions were vacant and nominations could be made and filled at the adjourned meeting;
• They say they always strive to assist bodies corporate to control their own affairs;
• They say the motion to appoint a body corporate manager under Division 10 was properly included in the agenda in terms of Section 35A(3)(a)(i) of the Module;
• Since the committee positions had been filled, it was appropriate to declare it out of order;
• They confirm an explanatory note was attached;
• They say they would prefer not to accept such an appointment as it is very onerous for the body corporate manager and receives returns that are "not worth the fee";
• They say they could not assume a committee would be formed given the lack of interest shown by lot owners in the past;
• The admit they erred in not pursuing the chairman to call the budget committee meeting, though they had felt they were assisting a disinterested Body Corporate;
• They say they can produce emails in relation to the impartiality of their dealings with the caretaker (not supplied);
• They say vacancies for the committee are filled from the floor of the annual general meeting;
• They note they are not notified of or invited to committee meetings.

Response to Submissions

Most of the response to submissions is directed at the applicant’s perception of defamatory remarks contained in the submission of the body corporate manager. Such issues are not within the jurisdiction of a departmental adjudicator. I summarise the other issued raised as follows:

• The applicant asks that the body corporate manager explain how committee appointments were made at the reconvened annual general meeting when there could be no nominations from the floor where no-one attended;
• She notes that the three other persons elected to the committee did not know they had been elected until the minutes were published;
• She says the executive positions were filled at a committee meeting held on 13 December 2006;
• She expresses the view that when it became necessary to adjourn the annual general meeting, it was up to the body corporate manager to follow up other owners to voice their opinions;
• She cannot see the relevance of previous owner ambivalence;
• She says that she was reliant on the body corporate manager to guide her on proper procedures;
• She says she can demonstrate that people have actually attended reconvened annual general meetings in the past (2003), so someone must have told them to come;
• She expresses her understanding that the body corporate manager had told her that attendees of the first meeting had to submit a voting paper for their vote to be counted at the reconvened annual general meeting;
• She alleges that the body corporate manager examined the documents that the applicant’s proxy held at the first annual general meeting and then handed them back saying they weren’t required at the reconvened meeting;
• She says that while she understands the body corporate manager should draw up a proposed budget, she took offence at the explanatory note’s inclusion of "the committee are suggesting an increase to the levy contributions";
• She says that none of the committee in fact knew about this proposal;
• She says that the outgoing chairperson says no-one ever contacted him about a budget meeting and that the would be happy to signa a statutory declaration to that effect (not supplied);
• She says people voted on the understanding the budget was supported by the committee;
• Says that the explanatory note should have said it was prepared by the body corporate manager with no input from the committee;
• She alleges that an existing committee member identified herself to the meeting 3 times but that the body corporate manager ignored this;
• She says there was no vote as to who would chair the meeting;
• She says the committee should have been given the opportunity to ask people seeking motions to amend them within the prescribed timeframe;
• She states her understanding that the body corporate manager said that 2 other people submitted motions for an alternate body corporate manager. My understanding is that he said no private motions regarding body corporate managers were received, though two people did make private motions in relation to other matters;
• She says that the body corporate manager’s reference to supporting documentation does not provide her comfort as they have not supplied them. I note however that the converse is true in terms of the supporting documentation that she has not supplied;
• She says she is concerned that invoices should be signed off by two committee members and not just the chairperson, however she does not advise the basis of this assertion;
• She says the body corporate manager would not have known there was a problem because she does not sulk when she carries on her duties as chairperson;
• She says she has emails between the body corporate manager and the caretaker that should have been brought to the attention of the committee (not supplied);
• She says that the exercise of option to renew the caretaking agreement was sent to body corporate manager but not provided to Body Corporate in the months before it was due (not supplied);
• She also refers to an audit report where she says certain reimbursements were made to the caretaker without being "passed on" (not supplied);
• She says that the body corporate manager is not invited to committee meetings because of the cost and the body corporate manager’s insistence they be held during business hours or a premium will apply;
• She says that on asking the body corporate manager about the need for attendance, she was given parameters about timing and minutes but informed the body corporate manager would not be accountable for what happened at those meetings;
• she says the body corporate manager refused to share their intellectual property with the Body Corporate and referred her to this office for guidance;
• she says she was never told the body corporate manager could not vote at committee meetings;
• she suggests that if this office is not inclined to appoint an administrator, she feels certain the current committee is capable of calling a new meeting.

Determination

It is not unusual for the issues raised within any form of dispute to stray from those matters that are the most important is considering the outcome sought. In this dispute, argument has been advanced in relation to:

• performance of the caretaker;
• performance of a body corporate manager;
• performance of old and new committees;
• collusion between parties;
• defamation; and
• a selection of other emotive issues.

However the question I have been asked is whether or not an annual general meeting should be declared invalid, whether it needs to be reconvened, whether to appoint an administrator for the purpose of a reconvened annual general meeting and who that administrator should be. To that extent then, I am not concerned to receive the other documentation that both the applicant and the body corporate manager refer to, because they are not relevant to assessing the mechanics and consequences of the meeting itself.

In my mind, the question that must first be answered is whether or not any procedural irregularities that may be identified have in some way altered the outcome of various resolutions or caused some form of meaningful detriment. In order to evaluate these propositions, I must consider the impact of the irregularities on each of the motions proposed.

To place these considerations in context, I am guided by the observations of Boulton DCJ who said:

The very detailed provisions of the standard module regulation to which I have referred above make it almost inevitable that form time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bone fide.^[1]

In other words a resolution will not be invalidated solely on the basis that there was a procedural irregularity.

In relation to each motion, there is the all encompassing argument by the applicant that lot owners should have been informed that a quorum had not been formed and that the meeting was to be reconvened the week later. She assumes that the body corporate manager should have assumed this was the body corporate manager’s responsibility. However the applicant raises objections to the body corporate manager making assumptions in relation to the budget. I am therefore unclear as to why she felt the authority rested with the body corporate manager to expend further monies in drumming up interest.

The body corporate manager had already sent out notices which most people had elected to neglect. There is no legislative obligation on the body corporate manager to make such a notification and why the applicant assumes the same methodology would prove more effective is not stated. In my mind, the lack of enthusiasm was something that would have been more properly addressed by those who attended the initial meeting, making overtures to fellow lot owners themselves. I find no culpability on the part of the body corporate manager on this point.

Motion 1 - Confirmation of minutes of previous General Meeting

The vote was carried 9:0 despite the absence of the applicant’s vote. The counting of a vote cast by the applicant would not have made any difference to the outcome of the resolution. Neither the applicant nor those making submissions advanced any other arguments in relation to this motion. I will therefore assume there is no reason to invalidate it.

Motion 2 - Adoption of accounts for period ended 31.07.06

The vote was carried 12:0 despite the absence of the applicant’s vote. The counting of a vote cast by the applicant would not have made any difference to the outcome of the resolution. Neither the applicant nor those making submissions advanced any other arguments in relation to this motion. I will therefore assume there is no reason to invalidate it.

Motion 3 - Approval of Administrative Fund Budget and Contributions for year ended 31.07.07, Motion 4 - Approval of Administrative Fund Budget and Contributions for next financial year, Motion 5 - Approval of Sinking Fund Budget and Contributions for year ended 31.07.07, Motion 6 - Approval of Sinking Fund Budget and Contributions for next financial year and Motion 7 - Approval of Insurance Fund Budget and Contributions for year ended 31.07.07

Motion 3 was carried 8:5 despite the absence of the applicant’s vote. Motion 4 was carried 12:3 despite the absence of the applicant’s vote. Motion 5 was carried 13:2 despite the absence of the applicant’s vote. Motion 6 was carried 12:3 despite the absence of the applicant’s vote. Motion 7 was carried 13:2 despite the absence of the applicant’s vote. The counting of the applicant’s votes would have made any difference to the outcome of these resolutions. I will therefore move on to the other grounds advanced by the applicant:

In relation to these motions, it appears the applicant is relying on the fact that the body corporate manager did not force the Body Corporate to have a budget meeting and that despite not having consulted they indicated that the committee had made a recommendation.

The body corporate manager has already admitted they were in error on this point. I feel certain that the body corporate manager will not again proceed to compile the necessary documentation to assist a scheme with a history of disinterest, without documented instructions from the committee. I recommend the body corporate manager ensure they have documentary evidence of any attempts to secure instructions in the future.

The question therefore, is whether or not anything would have changed had the committee provided some input to the budget and consequent levies. No submissions have been made as to the adequacy or otherwise of the budget. That is, the objection by the applicant appears to be a matter of principle rather than practice.

While committee members have supported the applicant’s application, they have not observed that they were influenced by the inclusion of the statement that the committee had made a recommendation. I agree it was an inappropriate inclusion in the document and recognise that its inclusion could be due to a number of reasons, not necessarily sinister.

I am also mindful that concerns about the budgets have only been expressed by the owners of a total of 5 lots out of the 98. Usually monetary matters attract a significant degree of concern from owners and adjudicators find that where owners feel they have been misled in relation to monetary matters, submissions are more forthcoming.

However on this point, I have formed the view that those objecting to the budget are not saying that it is inappropriate or that they were misled. It seems they simply object to the departure from procedure.

Without any evidence of detriment, specific problems with the numbers proposed or lot owners having been misled, I find no grounds in which to invalidate these motions.

Motion 8 - Audit of the Accounts

The vote was carried 15:1 despite the absence of the applicant’s vote. The counting of a vote cast by the applicant would not have made any difference to the outcome of the resolution. Neither the applicant nor those making submissions advanced any other arguments in relation to this motion. I will therefore assume there is no reason to invalidate it.

Motion 9 - Not to Audit the Accounts

I will at this point deal with the fact that the body corporate manager chaired the meeting and is therefore responsible for ruling motions out of order

Sections 29 and 44 of the Accommodation Module state that where the chairperson is present at either a committee meeting or a general meeting, the chairperson must chair the meeting. Section 44 elaborates on the procedures at general meetings. A body corporate manager may advise and help the chairperson but must not chair the meeting unless elected by the persons present or is the only person forming a quorum at an adjourned meeting.

The applicant points out the provisions in relation to voting for a person to chair the meeting if the chairperson is not present. However, Section 44(3) (b) (ii) states that where the body corporate manager is the only person forming a quorum at an adjourned meeting, then they may chair the meeting.

On this point, it appears the applicant complains that when the attendees were told they did not need to attend the reconvened meeting, they were not told that this would mean that if no-one else attended then the body corporate manager would become the chair. However as the body corporate manager has pointed out, the applicant has been at previous annual general meetings that were reconvened and had accepted the situation. In other words, she knew the implications.

The applicant raised objections in relation to attending meetings during business hours. Given this, it is quite feasible that the body corporate manager had assumed that offering attendees the choice of not attending the reconvened meeting was a mutually convenient outcome. I note that no-one has alleged they were not given a choice about attending the reconvened meeting. It seems they simply elected not to go.

I note that as 18 of the 20 attendees arranged to present voting papers, resolutions were determined on the basis of those voting papers.

In my view it was correct to rule this motion out of order as it was contrary to the previous resolution. Where the chairperson has correctly ruled a motion out of order, it is not material who the chairperson was in considering the validity of the outcome.

I see no reason to invalidate this outcome.

Motion 10 - Confirmation of Insurance

The vote was carried 15:2 despite the absence of the applicant’s vote. The counting of a vote cast by the applicant would not have made any difference to the outcome of the resolution. Neither the applicant nor those making submissions advanced any other arguments in relation to this motion. I will therefore assume there is no reason to invalidate it.

Motion 11 - Sinking Fund Forecast

The vote was carried 11:4 despite the absence of the applicant’s vote. The counting of a vote cast by the applicant would not have made any difference to the outcome of the resolution. Neither the applicant nor those making submissions advanced any other arguments in relation to this motion. I will therefore assume there is no reason to invalidate it.

Motion 12 - Insurance Revaluation

The vote was carried 12:4 despite the absence of the applicant’s vote. The counting of a vote cast by the applicant would not have made any difference to the outcome of the resolution. Neither the applicant nor those making submissions advanced any other arguments in relation to this motion. I will therefore assume there is no reason to invalidate it.

Motion 13 – Appointment of body corporate manager

There is procedural irregularity on this point that no-one has raised. Section 39 of the Accommodation Module provides that motions may be submitted by a member of the Body Corporate or the committee (as a whole). There is no provision for the body corporate manager to submit a motion.

I do not presume any sinister implications in the body corporate manager’s action in including the item on the agenda.

It appears to me that a vote of 11 to 4 is a clear indication that owners in the scheme see value in engaging a body corporate manager. However, the lack of motions proposing alternate body corporate managers also suggests that at the time of the meeting the majority of those voting were content with the status quo (including 2 of the existing committee).

Given the strong vote in favour of the body corporate manager, including 2 members of the current committee it is difficult to accept that the committee might have taken action to give the body corporate manager 3 months notice. Someone within the Body Corporate signed the agreement appointing the body corporate manager and the form of agreement should have been attached to the annual general meeting where the last engagement was made.

The applicant has not made any specific submissions regarding the clauses in the agreement to which she objects.

There are certainly irregularities in how the body corporate manager came to be appointed. However, I am satisfied that those voting were in favour of the appointment of a body corporate manager and that none had felt sufficiently dissatisfied to propose any alternative.

I find no detriment on which to justify overturning the resolution.

Motion 14 - Maintenance of Common Area, Motion 15 - Presentation of Unit Entrance Areas and Motion 16 - Electricity Allowance for Portion of Public Usage

As I concluded under the heading of motion 9, I see no basis for the applicant’s objection to the body corporate manager taking the role of chairperson. She and the other attendees elected not to attend the reconvened meeting, regardless of having experience that it would result in the body corporate manager becoming the chairperson if no-one else attended.

As noted by both the applicant and the body corporate manager, motions submitted must not be altered by the committee or the body corporate manager. In her response to submissions, the applicant has argued that had the committee received the motions before the annual general meeting, they could have approached the submitters for amendments before the meeting if time had allowed.

As the body corporate manager does not have the opportunity to respond to this, it is not known whether time would have permitted an amendment. I accept the body corporate manager’s advice that those making submissions were alerted to the fact the motions as proposed were ineffective. One would have thought, that those making the submissions would have taken the initiative to make amendments on receipt of that advice had they been so inclined or able to do so. To that extent, I am not convinced that submission to the committee would have made a difference.

I also note that the body corporate manager is quite correct in observing that amendment to the motions at the meeting would have seen the postal votes counted as no votes. No resolution would have carried in any event.

Finally on this point, the applicant cannot reasonably assert that non-one has noted the contents of the motions, merely because it does not include an indication that the issues should be noted. There is a substantial amount of more information required in relation to motion 16 to make it affective.

Where the chairperson has correctly ruled a motion out of order, it is not material who the chairperson was in considering the validity of the outcome. I find no detriment to justify overturning the decision to rule the motions outs of order.

Election of Office Bearers

Section 21 of the Accommodation Module provides in parts as follows:

......

(3) If the number of candidates nominated for ordinary member positions, plus the number of executive members of the committee, is not more than the required number of members
for the committee, the person chairing the meeting must declare the candidates to have been elected as ordinary members.

(4) However, if the number of candidates nominated for ordinary member positions, plus the number of executive members of the committee, is less than the required number of members for the committee, the person chairing the meeting must invite nominations at the meeting for the number of ordinary member positions necessary to bring the total number of all committee members to not more than the required number of members for the committee.

......

(6) The person chairing the meeting must invite nominations for the position or positions at the meeting, and must accept nominations made in either of the following ways--

(a) by members of the body corporate who are present at the meeting and eligible for election to the position;

(b) in writing, by members of the body corporate not present at the meeting, but who are eligible for election to the position.

(7) A member of the body corporate may nominate, under subsection (6), not more than 1 person for all ordinary member positions for which nominations are invited.

(8) To remove any doubt, it is declared that the member may make the nomination whether or not the member made a nomination under section 14 for a position on the committee.

......

Therefore those elected to the committee as ordinary members were able to make nominations for committee membership from the floor at the first meeting or by written nomination if they were not at the meeting. The body corporate manager advises that Ms East and Ms Beckel both made written nominations at the first meeting.

Since the number of nominations was not more than the upper limit of the required number of members for a committee (see Schedule to the Accommodation Module) then under Section 21(3) those who nominated were automatically elected. No vote was required.

The applicant also advises that the executive positions have now been filled under "s. 33 decision". I am not able to establish how Section 33 of either the Act or the Accommodation Module is relevant to the appointment of ordinary members as executive members.

At the last AGM Ms Schuba was appointed as Chairperson but no Treasurer or Secretary was appointed. Therefore in accordance with Division 4A, an Extraordinary General Meeting should have been held. Division 4A of the Accommodation Module provides as follows:

22A Definitions for div 4A

In this division--
"elected member", of a committee, means an executive or ordinary member of the committee elected at a relevant annual general meeting of the body corporate.
"relevant annual general meeting" means an annual general meeting of a body corporate, other than an annual general meeting mentioned in section 12(2), at which--

(a) at least 1 person is elected as an executive or ordinary member of the committee; and
(b) either--

(i) at least 1 executive member position on the committee is not filled; or
(ii) the total number of voting members of the committee elected is less than 3; and

(c) the body corporate does not approve the engagement of a body corporate manager under division 10.

22B Requirement to call extraordinary general meeting
(1) Within 1 month after a relevant annual general meeting is held, the elected member of the committee or, if there is more than 1 elected member, the elected members of the committee acting jointly, must call an extraordinary general meeting of the body corporate.
(2) The extraordinary meeting must be held within 2 months after the relevant annual general meeting.
(3) Section 59 does not apply to the calling or holding of the extraordinary general meeting.

22C Appointment of committee member at extraordinary general meeting
(1) At an extraordinary general meeting called under this division, the body corporate may appoint, without conducting an election, a person who is eligible to be a member of the committee to fill a vacancy on the committee.
(2) If 1 co-owner of a lot is an elected member of the committee, not more than 1 other co-owner of the lot may be appointed under this section as an ordinary member if necessary to bring the total number of voting members of the committee to 3.
(3) A person must not be appointed under this section as a member of the committee if, following the appointment, the committee would number more than the required number of members for the committee.

22D Engagement of body corporate manager under div 10 at extraordinary general meeting
(1) The agenda of an extraordinary general meeting of a body corporate held under this division must include a motion approving a person’s engagement as a body corporate manager under division 10.
(2) The motion may be considered at the meeting only if, following any appointment of committee members under section 22C--

(a) at least 1 executive member position on the committee is not filled; or
(b) the total number of voting members of the committee is less than 3.

(3) If the motion is considered at the meeting, it must be considered as the last item of business for the meeting.

As only 1 person was elected as an executive member at the last annual general meeting, an extraordinary general meeting should have been called within one month of the annual general meeting and been held within two months of the annual general meeting. If an extraordinary general meeting had been held, the body corporate was required to appoint a person who is eligible to be a member of the committee. Otherwise they could engage a body corporate manager under division 10.

While it is possible that the applicant is referring to Section 23C of the Accommodation Module when they refer to "s. 33", I am unable to conclude that a committee decision was effective, as section 23C is only applicable in the circumstances where a committee position becomes vacant by operation of section 23(2).

I find that neither Division 4A nor Division 5A have been complied with, and as a result, I conclude that there have not been valid appointments to the positions of Treasurer and Secretary.

The committee may wish to correct the situation before the next annual general meeting by convening an extraordinary general meeting. However, I do note that the scheme’s financial year ends on 31 July 2007. The committee might therefore like to explore whether the annual accounts could be expedited to bring the annual general meeting forward, without incurring the cost of an extraordinary general meeting in the interim. I see no reason to order the Body Corporate to incur the cost of an administrator.

Motion 17 - Motion To Appoint A Body Corporate Manager Under Division 10 Of The BCCM Accommodation Regulation 1997

I am at quite a loss as to how it is that the applicant has concluded that the inclusion of this item on the agenda as the last item is indicative of a desire to usurp the power of the committee.

I note that under Section 35A of the Accommodation Module the appointment of a Division 10 body corporate manager can take place at a meeting as follows:

......

(3) For subsection (2) (c), the general meeting can be--

(a) an annual general meeting at which--

(i)	at least 1 executive member position on the committee is not filled; or

(ii)	the total number of voting members of the committee elected is less than 3;

......

(5) The motion approving the engagement must be considered as the last item of business for the meeting.

The applicant states that after 3 years in the scheme she was "unschooled in the Act". She herself admits to failing to take any initiative in relation to preparation for the annual general meeting in terms of budget revision. Given the history of this scheme, it appears a valid option to include such an item on the agenda.

I find no detriment to justify overturning the decision to rule the motion out of order.

Conclusion

I acknowledge there have been some procedural irregularities. I am also aware that some of those voting at the annual general meeting have had a change of heart in regard to the body corporate manager. However where there is some form of irregularity, accessing a dispute resolution process such as that provided by this office requires demonstration of some form of detriment that goes beyond a change of heart, a matter of principle or unsubstantiated allegations.

As I have indicated earlier, there appears to be some inconsistency as to when the applicant expects the body corporate manager to take the initiative and when she does not. I recommend that in future:

• the committee remain committed to their recent proactive approach; and
• the body corporate manager ensure that all attempts at communication with, and directives of, the committee are well documented.

The application is dismissed.

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^[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.