Kingsleigh Villas [2007] QBCCMCmr 34 (19 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0930-2006

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 declare that as the calling of the Extraordinary General Meeting of the body corporate dated 23 November 2006 was not in accordance with the Body Corporate and Community Management (Accommodation Module) Regulation 1997, the Notice of the Extraordinary General Meeting is void for irregularity.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0930-2006

"Kingsleigh Villas" CTS 20772

APPLICATION

This application is by Beechdeen Pty Ltd, the owner of Lot 46 (applicant) against the body corporate seeking an outcome that the meeting notice of the proposed extraordinary general meeting of the body corporate to be held on 23 November 2006 is void and that the extraordinary general meeting not be held.

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 (including a declaratory order) 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).

INTERIM ORDER

The applicant had also sought an interim order. On 23 November 2006, I made an interim order that "pending a final determination of the application, the body corporate for Kingsleigh Villas community titles scheme 20772 (the body corporate) shall not proceed with, implement or otherwise act upon any resolution passed on a motion on the agenda of the Extraordinary General Meeting dated 23 November 2006".

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 the committee.

INSPECTION

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

DETERMINATION

In the reasons for making the interim order I relevantly stated:

The Accommodation Module provides the procedures and powers of the committee, including provisions relating to calling, holding and voting at a committee meeting. Relevantly, section 26 requires a notice of meeting to be given to all committee members, with advice of the proposed meeting being given in most cases to all lot owners. Section 30A provides for attendance at committee meetings by non-voting members. Section 33 provides for voting outside a committee meeting and also requires notice to be given to all committee members with an advice to owners.

The Accommodation Module also details the administrative arrangements for general meetings. In particular, section 38(1) states that a general meeting may be called by the secretary or another member of the committee who has been authorised by the committee. Section 39(1) provides that a motion may be submitted for consideration at a general meeting by a member of the body corporate or the committee. Sections 40 and 43 state that the notice of a general meeting must contain an agenda which includes (amongst other things) the substance of each motion submitted by the committee.....

The copy of the notice of the EGM provided by the applicant does indicate that the notice was given by Barard Management Pty Ltd, the body corporate manager. While the body corporate manager may be authorised to carry out this function, in the absence of a proper request from lot owners the EGM can only be called with the authority of the committee. The notice also indicates that each of the eight motions on the agenda was proposed by the committee. A committee decision to authorise the calling of a general meeting to consider motions submitted by the committee can only be made in ways stated in the Accommodation Module. The applicant, as a non-voting member of the committee, is entitled to be given notice of a proposed committee meeting or notice of a motion proposed to be voted on outside a committee meeting. The applicant states that a committee meeting was not held. To date this has not been disputed by the committee.

In the absence of material to suggest that the committee did properly authorise calling the EGM and the submission of motions, a serious legal issue arises with respect to the EGM. The absence of a proper authority is a significant procedural defect warranting an interim order.

The committee has submitted that the EGM was organised by the chairperson and the body corporate manager. As indicated above, the convening of a general meeting in this way without either committee authority or a proper request from lot owners is contrary to the legislation. The chairperson submitted that the EGM was convened as a replacement secretary needed to be appointed and the other committee member was un-contactable overseas. She states that the commissioner’s office advised her to organise an EGM immediately to facilitate having the annual general meeting before 31 December 2006. In some instances, there may be extenuating reasons which justify convening an extraordinary general meeting without strict compliance with the provisions of the Accommodation Module. However, given the stated circumstances I am not satisfied that there is any justification in this case.

While a notice of the EGM to be held on 23 November 2006 was given to owners, there are no minutes of the EGM being held. Mr Holmes of Barard Management stated that a quorum was not present on the date of the EGM and that the meeting has not been reconvened. Consequently, no resolutions have been made on the motions on the agenda of the EGM even though it is evident that a number of owners submitted voting papers (the majority of which it would seem supported the motions on the agenda of the EGM).

In the circumstances where the EGM has not been held, I consider it is necessary to deal with the outstanding issue relating to the calling of this meeting. For the reasons stated, I consider it appropriate that a declaration be made that the calling of the EGM was contrary to the requirements of the legislation.

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). Given this circumstance, I have made an order (Application 0008-2007) extending the time for holding the annual general meeting to 31 March 2007. If the committee consider that a motion or motions submitted to the EGM should be determined by owners, then the committee may decide to submit the motion or motions to the annual general meeting.