Kingsleigh Villas [2007] QBCCMCmr 31 (19 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0828-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20772
Name of Scheme:	Kingsleigh Villas
Address of Scheme:	QUEENSLAND

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Beechdeen Pty Ltd, the owner of Lot 46

I hereby order that the application for an order by Beechdeen Pty Ltd, the owner of Lot 46 seeking an outcome that the body corporate holds an extraordinary general meeting as requested by the owners of at least 11 lots included in the scheme, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0828-2006

"Kingsleigh Villas" CTS 20772

APPLICATION

This application is by Beechdeen Pty Ltd, the owner of Lot 46 (applicant) against the body corporate. The applicant is seeking an outcome that the committee holds the requested extraordinary general meeting sought by the owners of Lots 4, 7, 8, 11, 18, 19, 21, 23, 33, 35, 38 and 46 who make up 27% of the owners of all lots to appoint a new committee of the body corporate.

JURISDICTION

"Kingsleigh Villas" Community Titles Scheme 20772 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (section 276(1), Act).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. A submission was received from Catherine McCabe (the chairperson). The applicant made a written reply to submissions under section 244 of the Act.

INSPECTION

On 17 January 2007, I inspected the body corporate records at the office of Barard Management, the body corporate manager.

DETERMINATION

The applicant has provided a copy of the notice dated 5 April 2006 and signed by the owners of the abovementioned lots (it is noted that the owner of Lot 19 has revoked his agreement to request a meeting). The owners requested "the holding of an EGM to vacate all positions on the committee and appoint a new committee". It would seem that the request signed by owners was attached to a letter dated 4 April 2006 from Pacific Palms Real Estate (the nominee of the applicant is noted as the principal).

In her submission, the chairperson disputes the body corporate’s ability to replace the 3 committee persons chosen at the preceding annual general meeting with 7 persons. The chairperson questioned the correctness of the abovementioned letter and whether the persons nominated for appointment to the committee in the letter had agreed to being elected to the committee. The chairperson also raised a number of other issues with respect to the request.

Given the requirements of section 59 of the Accommodation Module, an extraordinary general meeting must be called if a proper notice requesting a meeting is given to the secretary, or in that person’s absence, the chairperson (unless there is a determination otherwise, the notice may be given to the body corporate manager if that person is authorised by the body corporate to exercise the powers of the secretary and/or the chairperson).
As there are 44 lots included in the scheme, a proper notice must be signed by or for the owners of at least 11 lots and include the proposed motions. It would seem that the notice given in this case satisfied these requirements of the Accommodation Module. Therefore, the motion or motions proposed in the notice must be included on the agenda (section 43, Accommodation Module) of the extraordinary general meeting called and held within the time frames specified in section 59.

Even though other owners may have been satisfied with the chosen committee and indicated opposition to the motions proposed in the notice, the requested meeting must be called and held. These owners could vote against the motions on the agenda of the convened meeting (provided each owner had a right to vote). Additionally, if there is a concern about the correctness of a motion on the agenda of a general meeting, the person chairing the meeting has a power under section 45 of the Accommodation Module to rule the motion out of order.

It is evident that an extraordinary general meeting has not been called as requested by these lot owners. While there are a number of issues which may be relevant in the determination of this application, I consider that the merits of these matters do not warrant consideration given that the calling and holding of the body corporate’s annual general meeting is now overdue. It is apparent that the body corporate has not held the annual general meeting required to be held by 31 December 2006 (section 58 of the Accommodation Module requires the annual general meeting to be held within 3 months after the end of the financial year which is 30 September 2006). The requested extraordinary general meeting sought to deal with motions about the composition of the committee. Given that the choosing of the members of the committee must happen at each annual general meeting (section 12, Accommodation Module), there is no longer any necessity to deal with the matters stated in the request.

For these reasons, the application is dismissed. It should be noted that I have made an order on Application 0008-2007 extending the time for holding the annual general meeting to 31 March 2007.