Ipomoea Court [2007] QBCCMCmr 49 (30 January 2007)

Last Updated: 12 February 2007

REFERENCE: 0882-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5042
Name of Scheme:	Ipomoea Court
Address of Scheme:	44 Ocean Street MERMAID BEACH QLD 4218

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

Mr Paul Lomaz, the Owner of lot 5

I hereby order that the application for an order "that the minutes be amended to be a true and accurate account of the AGM" is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0882-2006

"Ipomoea Court" CTS 5042

APPLICATION

This is an application dated 31^st October 2006 by Paul Lomaz (the Applicant) owner of Lot 5 in the scheme, against the Body Corporate for Ipomoea Court (the body corporate) for an order that the minutes of the annual general meeting held on 7^th October 2006 be amended in certain particulars, to be a "true and accurate account of the AGM".


JURISDICTION

"Ipomoea Court" Community Titles Scheme 5042 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management ( Standard Module) Regulation 1997 (Standard Module). There are eight lots in the scheme created under a Building Unit Plan of subdivision.

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)).


SUBMISSIONS

The Applicant, who was chairman of the scheme up to 7^th October 2006, says that during 2006, the occupiers of Unit 7 had continued to allow visitors to park their vehicles in the driveway, thus blocking access to other lots’ garages. The tenant of Unit 3 also blocked the driveway.

On 10^th July 2006, the Applicant wrote a letter to the owner of Unit 7, Benita Briglia (Mrs Briglia) . advising her of the continuing problem with her tenant, Mr Slater. He also wrote to the agent for Unit 3 about the same "breach of by-law." Mrs Briglia is now the owner of Unit 3 and Unit 7.

The secretary for the scheme, Nathan Reeves (Mr Reeves) owns units 4 and 8.

The annual general meeting (the AGM) was held on 7th October 2006. The Applicant attempted to chair the meeting but Mr Reeves and Mrs Briglia "repeatedly shouted me down." The Applicant had proposed a "submission for an agenda item" listed in the pre-meeting letter sent round by the secretary as " Remuneration for general repairs and maintenance around the property." He says the submission was not voted on at the AGM, "and the recording of such is inaccurate."

On 8^th October 2006 he wrote a letter to the committee saying that he would no longer perform gratis maintenance jobs around the complex which was a burden added to by the poor standard of tenants invited in by Mrs Briglia. He also objected to being derided and abused at the AGM by Mrs Briglia.

The letter was forwarded to all lot owners by the secretary, Mr Reeves. On 12^th October 2006, the Applicant wrote another letter to the committee via the secretary objecting to two omissions in the AGM minutes being comments from him and "Nel" ( whose status and lot are not identified by the Applicant) of smoke and pollutants encroaching into their respective units, and discussion concerning an unregistered vehicle. He accused the committee of bias, and asked for a "true account of what occurred in relation to these two matters" to be recorded. The Applicant also stated - " I question your ability to act in the capacity of secretary," and added that he would " do nothing at this stage" as he believed "people should be given a second chance to correct their previous errors."

On 14^th October 2006, he again wrote to the committee, suggesting draft wording for the amendment of the minutes. In that letter the Applicant quotes "section 129(4) of the BCCM Act 1997" about causing a nuisance or hazard in a scheme.

On 18^th October 2006, the committee replied to the Applicant. His correspondence was forwarded to all lot owners, and lot owners were advised that it was the committee’s view that if the Applicant wanted to amend the minutes he could put that forward as a motion to a general meeting. The committee also stated that verbatim recording of discussions was "not a requirement of the secretary."

On 19^th October 2006, the Applicant wrote another letter to the committee stating that he would be proceeding with this application, and a further letter on 24^th October 2006 concerning a breach of by-law by the occupier of unit 7 who was hanging bed-linen and towels over the balcony of Unit 7. He asked the secretary to act on that breach since it is part of his duties and he " gets paid as such."

He feels that the minutes were not properly recorded and that the AGM " was a farce." The secretary did not take notes at the meeting. When the Applicant was secretary, he used to write up minutes and recount them to all present and seek input.

He provides revised wording by which he wishes the particulars of the minutes to be amended. These include pointing out the difference between a by-law and a "house rule."

In accordance with section 243(2)(b) Act, submissions were invited from all lot owners.

Mr Reeves made submissions as secretary of the scheme but not apparently on behalf of the body corporate. He says that he prepared the minutes of the AGM, and said that he read back to meeting the way he had recorded each matter raised. The Applicant had raised no objections at the time. The chairman then proof-read the minutes and signed them before they were sent out to lot owners. No other owners have disputed that they are true and accurate account of the AGM.

He understands that he is not able to modify the minutes once they have been signed off by the chairman, even if he wished to do so. He is saddened at this turn of events and at the persistent demands of the Applicant which has allowed neighbourly relations to deteriorate. Since the lodging of this application, the Applicant continues to write numerous letters to the secretary requesting information about repairs and who authorised or paid for them, noting business occurring in the scheme, submitting motions to the next AGM, and requiring a committee meeting to be held to discuss various issues. Mr Reeves attaches letters from the Applicant dated 7^th November 2006, 10^th November 2006 and 18^th November 2006 in addition to the letters provided by the Applicant in the application.

Mrs Briglia stated that she found no fault with the way in which the secretary conducts the business of the body corporate or with his preparation of the minutes of the AGM.

Peter Lovelock (Mr Lovelock), who is now the new chairperson, says that he believes that the minutes represent a true and accurate account, and that there is no necessity for a verbatim report. Remarks made by him were also not repeated in the minutes, but they are not required. He was of the impression that the Applicant was going to continue his maintenance of the grounds and only became aware the following day by letter from the Applicant that this was not the case. He believes that the vehicle parked in the driveway of which the Applicant complained was merely a delivery vehicle. He does not recall that the Applicant was ‘ shouted down’ at the AGM when he wanted to chair the meeting, but that the Applicant opened the meeting and then handed over to the secretary Nathan Reeves. The Applicant was chairman at the time, but he appeared to be happy with the proceedings.

The Applicant exercised his right of Reply. He points out that Mrs Briglia is pleased with the secretary’s skills because she has no knowledge of the legislation and thus the secretary’s failures.
He says that no votes were recorded on agenda items, which is the secretary’s duty, nor were there any reasons recorded for why votes were made the way they were, nor reasons given for putting forward the agenda items. He denies that he seeks to change the minutes to a verbatim report. He says that Mr Lovelock has nothing to do with communication to tenants " so how it affects him is perplexing." He denies that Mr Reeves read back the minutes nor did he write them down.

He refutes that the delivery van was an independent service van but belonged to a family member of an occupier and was left parked deliberately to antagonise him. He says he only handed over the meeting to Mr Reeves in order for him to read out the financial statement " yet he just took over the meeting and any attempt to "re-chair" the meeting went astray and was curtailed by Reeves, Lovelock and Briglia."

He says that Mr Reeves "blatantly lies" about reading back the minutes.


DETERMINATION

In this matter the outcome sought is for the minutes to be amended in the particulars requested by the Applicant.

However, I find that the application is obfuscated by accusations that the secretary is not capable of performing his role, and that other lot-owners are liars or simpletons or both, and in cahoots with each other to the detriment of the Applicant. Clearly there is some background of disagreement in the scheme, but this application is not about allegations of wrongful parking, breach of by-laws, the behaviour of someone else’s tenants, who does maintenance around the property, or any other matter save that which the Applicant has sought in his application as the desired outcome, that is, the amending of the minutes of the AGM of 7th October 2006.

This Office does not police bodies corporate, nor does it seek to intervene in personalty disputes. It assists in the resolution of disputes against the framework of the legislation and has the jurisdiction as quoted above. The issue is stated to be that the minutes emanating from the AGM are not correct.

In his Reply, the Applicant adds that votes were not recorded in the minutes, although this is omission is not sought as a desired outcome in the application. In fact, under "section 5. Outcome sought" on the application form, the Applicant has written : " Attached correspondence END of Page 5." There are two headings on page 5, the last being "Page 3-Enforcing of by-law 8" which sets out how the minute for this particular item needs additional material to make it clear which is a by-law and which a house-rule. However, on page 4, towards the bottom of the page, it says , "I seek the following in this application – that the minutes be amended to be a true and accurate account of the AGM."

I can only look at the material supplied by the Applicant and ask this question : "Has the body corporate failed to exercise its powers or the performance of its duties under the Act or the community management statement, or has it contravened the Act?" If the answer to that is in the affirmative, I then ask , "Is the failure so substantial that the AGM should be interfered with by remedial action?"

I note that in this scheme, the legislation has not been followed in respect of holding and running an annual general meeting. I fear that this failure may have caused some of the current breakdown of ‘neighbourly relations’ and may be adding to the Applicant’s concern. The fault here is that the scheme appears to invite from lot owners, prior to an annual general meeting, topics for discussion at the meeting, called " General Agenda Items." These are listed by headings eg
"Updating of Sinking Fund Budget"; and "Remuneration for general repairs around the property," and are not "motions" which are "motions to be Voted on."

This is not the way required by the Standard Module. Lot owners should be invited to submit motions, that is, a proposal that something is done. The motion must be accompanied by ‘voting papers’ in a format so that lot owners may vote "yes" or "no" to the motion, or to tick the " abstain" box, and abstain from voting. (Section 42A Standard Module; BCCM Form 4 as example). The annual general meeting is not a forum for discussion. There should be no business discussed which is not listed as a motion ( to be voted on) on the agenda, and little discussion on the motions proposed. The reason for this is that lot owners do not have to attend the annual general meeting, but may vote by post. Each lot owner has 21 days’ notice of the motions on the agenda. If he or she wishes to find out more about a motion, he or she may contact the proponent of the motion, or the committee. Lot owners may also canvass others to vote for "their" motion, or to vote in a particular way, and lobby before the meeting. Submitters of motions may also submit explanatory material of mot more than 300 words in length, which must be circulated with the agenda. (Section 42C Standard Module).

Brief discussion may occur at the annual general meeting but the morion cannot be amended if it changes the substance of the motion. (Section 57 Standard Module).

Therefore, the Applicant’s ‘motion’, which was in effect to discuss remuneration (for unnamed persons of an unspecified amount) for (unspecified) maintenance done, or to be done was too vague for lot owners to vote upon. It may be that there was subsequent discussion, and this is what the Applicant wants recorded. However, there is no requirement to record anything other than the details listed at section 59(3) Standard Module. These are the date, time and place of the meeting; the names of the persons present and their capacity; details of proxies tabled; the words of the motions to be voted upon; the number of votes recorded for each motion, and the number of abstentions; the number of votes cast for each committee member; the time the meeting closed; and the secretary’s name and contact address.

If the agenda and motions were set out in the correct format, then section 59 Standard Module makes sense. If there are no proper motions, the Applicant’s view makes sense in that he seeks the recording of minutes of a meeting as to what was said by the attendees. However, this is not part of body corporate legislation. The legislation is designed to cope with 100 plus lot schemes, and personal input from lot owners is not part of the annual general meeting process. Lot owners may during the year write to the committee, or propose that the committee perform certain tasks, or canvass each other as described above. The annual general meeting principally concerns the ‘statutory motions’ , (ie setting the two budgets, which are to be set out and circulated with the agenda; the reviewing of the scheme insurance; whether the books are to be audited or not; the approving of the past year’s financial records; and fixing contributions for the forthcoming year, also set out as a motion with fixed figures to be voted upon), and any other motions submitted by owners or the committee, with explanatory material if necessary. Election of office bearers also takes place at this time.

I also note that office bearers have been nominated and "seconded." Again, there is no facility in the legislation (and has not been since at least 1997) for the "seconding" of office bearers. Nominations are to be made in accordance with section 13 and 13A Standard Module.

Clearly, the lot owners in this scheme have used this system of general meeting procedure in the past, and it appears that the Applicant as chairperson, and previously as secretary has acquiesced in it.

In the case of Chen v Body Corporate for Wishart Village CTS 19482^[1], His Honour Judge Boulton DCJ made the following comments on the provisions of the Standard Module:

"The very detailed provisions of the standard module regulation.........above make it almost inevitable that from 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 bona fide."

I find that the dispute which the Applicant has with the body corporate is in essence that the body corporate does not hold proper general meetings, although he has not worded his application as such. I cannot make an order that the minutes are changed to reflect a system which is not in accordance with the legislation, but which may be in accordance with the type of meetings held technically ‘wrongly’ by the body corporate.

Votes on motions should be recorded, and a tally kept in the body corporate records of those who voted for and against, unless the motion is voted upon by secret ballot. However, since there were no motions, but only "items for discussion", proposed, the minutes of the AGM, such as they are, shall stand. I am satisfied that the body corporate and Mr Reeves was acting bona fide.

The Applicant also quotes section 129(4) of the Act. That section concerning nuisance has been amended as to numbering and has since March 2003, been section 167 Act. This further leads me to believe that this scheme, and/or the Applicant, is unaware of current legislation.

Further, in relation to this scheme’s by-laws, I note that no new community management statement has been lodged since the last dispute application came before this Office in April 2005. The scheme by-laws, as explained in that Order (0288-2005) are those set out in Schedule 3 of the former act the Building and Group Titles Act 1980, and which were recited in that order for the scheme’s convenience. "House rules" are unenforceable. Only by-laws are unenforceable. The procedure by which a by-law is enforced is that the complainant asks the committee to send a contravention notice, stating the text of the relevant by-law breached, to the alleged offender. The committee need only do so if it believes that a by-law has been breached. However, if the committee does not act within 14 days after being requested to do so, the complainant may make an application about the alleged breach to this Office.

The Applicant and the committee for this scheme may be interested in the free ‘on-line training’ now available for committees and any interested persons on the website of this Office at www.bccm.qld.gov.au

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^[1] His Honour Judge Boulton DCJ in Chen v Body Corporate for Wishart Village CTS 19482. District Court Brisbane, 29 May 2001