17 - 23 Kidston Terrace Chermside [2007] QBCCMCmr 587 (9 October 2007)

Last Updated: 18 October 2007

REFERENCE: 0560-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29047
Name of Scheme:	17 - 23 Kidston Terrace Chermside
Address of Scheme:	17 - 23 Kidston Terrace Chermside QLD 4032

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Chiao Hung Cheng, the owner of Lot 1

I hereby order that the body corporate for 17 - 23 Kidston Terrace Chermside community titles scheme 29047 must immediately provide (without requiring the payment of a fee) Chiao Hung Cheng, the owner of Lot 1 with a complete copy of the roll of lots and entitlements prepared and kept by the body corporate as required by section 143 of the Body Corporate and Community Management (Standard Module) Regulation 1997. I further order that the outcome sought by Chiao Hung Cheng that Motion 1 passed at the Annual General Meeting dated 17 May 2007 and adjourned to 24 May 2007 (AGM) be invalidated, is dismissed. I further order that the result of voting on Motions 3 and 4 at the AGM was 2 yes votes and 1 no vote and that if it has not already done so, the body corporate must immediately amend the minutes of the AGM to reflect this result. I further order that voting on Motion 5 at the AGM was: for the Motion – Lot 6 and against the Motion - Lots 1 and 7. On the basis of these votes, the Motion was not passed by special resolution and while the correct resolution has effect, the statement of accounts of the body corporate for the financial year ending 29 February 2008 shall be audited. The minutes of the AGM must immediately be amended to properly record the votes for and against the Motion made by the owners of Lots 1, 6 and 7 and to indicate that the Motion was not passed. I further order that as soon as practicable, the body corporate must give a copy of the minutes of the AGM amended in accordance with the terms of this order to the owner of each lot included in the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0560-2007

"17 - 23 Kidston Terrace Chermside" CTS 29047

Application
This application is by Chiao Hung Cheng, the owner of Lot 1 (applicant) against the body corporate seeking the following outcomes:

1. He be given access to the body corporate roll.

2. The minutes from the Annual General Meeting dated 17 May 2007 adjourned to 24 May 2007 (AGM) be corrected, that corrected copies be sent to all owners, and that the corrected minute be recorded in the body corporate minute book.

A. Motion 3 (Administrative Fund Levies - Ordinary Resolution) was recorded as 3 Yes, 0 No, 0 Abstain - should be 2 Yes, 1 No, 0 Abstain.

B. Motion 4 (Sinking Fund Levies - Ordinary Resolution) was recorded as 3 Yes, 0 No, 0 Abstain - should be 2 Yes, 1 No, 0 Abstain.

C. Motion 5 (Non-Audit of accounts - Special Resolution) was recorded as 2 Yes, 1 No, 0 Abstain - should be 1 Yes, 2 No, 0 Abstain.

3. Motion 5 (Non-Audit of accounts) of the General Meeting no longer be carried and as a result that the accounts be audited.

4. Motion 1 (Confirmation of Minutes - Ordinary Resolution) from the Extraordinary General Meeting (held on 25 June 2007, 2pm at offices of Body Corporate Manager) be invalidated as the minutes at this time were incorrect.

Jurisdiction
"17 - 23 Kidston Terrace Chermside" is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard 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 (s276(1), Act). An order may require a person to act in a way stated in the order (s276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s284(1), Act).

Procedural matters
On 17 July 2007, a copy of the application was provided to Ashgrove Body Corporate Services (the body corporate manager) for distribution to the owner of each lot (excluding the applicant) and the committee, with an invitation to respond to the matters raised in the application. Submissions were made by a number of lot owners. The applicant inspected the submissions received and made a written reply (ss244 and 246, Act).

A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Submissions
The applicant

1.

The body corporate manager has denied him access to the roll stating that it was possible for the manager to pass his details to each owner and have each owner decide whether or not to contact him. The applicant provided a copy of an email he sent on 21 June 2007 to [e-mail] and to [e-mail] requesting an inspection of the body corporate roll and the voting papers of the AGM. The applicant provided a copy of an email from Sue Seymour ([e-mail]) dated 21 June 2007 sent in reply to his earlier email stating a time for the applicant to inspect the voting papers and stating "You will not have access to any personal information of any lot owner". Attached to the email was the "Privacy Policy of ADBC Pty Ltd". On the same date, the applicant replied to Sue Seymour stating that the Privacy Policy cannot override the regulations. The applicant states that he did not receive a reply to this email. He states that he was denied access to the roll at the inspection he did on 22 June 2007 at the offices of the body corporate manager.

2.

The voting tallies in the minutes of the AGM are incorrect as the result of Motions 3 and 4 record nil no votes. He voted against both Motions. He contacted the body corporate manager who said that the outcome would not be affected. The applicant provided a copy of an email from Sue Seymour ([e-mail]) dated 21 June 2007 sent in reply to his 21 June 2007 email stating "their was an administrative error". He states that he inspected the voting papers at the inspection he did on 22 June 2007 at the offices of the body corporate manager and he found the tallies for Motions 3, 4 and 5 to be incorrect. The manager did not seem to want to correct the voting tallies saying the outcome of Motions 3 and 4 would not be affected. The manager did not accept the tally for Motion 5 was incorrect.

Other owners
The owners of Lots 2 and 6 supported the application.

Reply to submissions
The applicant did not wish to respond to the submissions saying they are positive and support the application.

Further information
In accordance with my investigative powers stated in section 271 of the Act, on 8 October 2007 I requested the body corporate manager provide a copy of the voting papers submitted to the AGM. A copy of the voting papers submitted for Lots 1, 6 and 7 was provided on the same date.

Determination
Access to the body corporate roll
Section 204 of the Act provides that a body corporate must give access to rolls, registers and other documents in the way provided for in the regulation module. Section 150(1) of the Standard Module provides The body corporate must allow all members of its committee reasonable access (without payment of a fee) to the body corporate’s records. Section 143 of the Standard Module provides that a body corporate must keep a roll containing information such the name, residential or business address and the address for service of the current owner of each lot included in the scheme. Section 205 of the Act provides for the giving of information by the body corporate from its records and makes provision for persons such as lot owners being able to inspect body corporate records or being given a copy of a record kept by the body corporate (on payment of a prescribed fee).

The applicant has demonstrated he requested access to the roll and that he has been denied access. It is apparent that AD Body Corporate Managers & Consultants has refused to allow the applicant access on the basis that it would be contrary to a privacy policy which may or may not be developed based on the Privacy Act. The legislated disclosure provisions prevail over such a policy. A body corporate cannot decide to adopt a privacy policy which is contrary to the Act.

The body corporate roll is part of the records of the body corporate. The applicant is an owner and is entitled to inspect or to obtain a copy of the roll under section 205 of the Act. In addition, as the applicant is a committee member, he is entitled to access without the payment of a fee. I am satisfied that the applicant has requested access to the body corporate roll and that the only reason for denying access is the inappropriate use of a privacy policy. In the circumstances, the applicant is entitled to access to a copy of the roll.

The AGM
The minutes of the AGM indicate that Lots 1, 6 and 7 were the only lots represented and that a voting paper was submitted for each lot. The copy of the voting papers provided by the body corporate manager indicates that: Lots 1, 6 and 7 voted for Motion 1; Lots 6 and 7 voted for Motion 3 and Lot 1 voted against the Motion; Lots 6 and 7 voted for Motion 4 and Lot 1 voted against the Motion; and Lot 6 voted for Motion 5 and Lots 1 and 7 voted against the Motion.

The applicant contends that Motion 1 should be invalidated even though he voted for the Motion at the AGM. Motion 1 proposed confirming the minutes of the Extraordinary General Meeting dated 27 June 2006. The Motion was passed by 3 votes to nil. The applicant has not provided any explanation for now wanting the Motion invalidated. Neither has the owner of Lot 6 who also voted for the Motion. In these circumstances, I have declined to make the order sought. The resolution passed on the Motion will have effect unless the body corporate at a subsequent general meeting resolves by ordinary resolution to amend or revoke it (s58, Standard Module).

It is evident from the voting papers that the correct result of voting on Motions 3 and 4 was 2 votes for the Motion and 1 vote against. The applicant provided a copy of the minutes of the AGM distributed by AD BCM to owners on 31 May 2007 showing that both Motions were carried by 3 votes to 0. The applicant also provided a copy of the minutes of the same meeting seemingly distributed by AD BCM to owners on 21 June 2007 showing that both Motions were carried, but that the voting on both Motions was 2 yes and 1 no. It would seem that the minutes were amended to properly reflect the voting before the application was made. However, neither the applicant nor the 2 supporting lot owners have made mention of the later draft of the minutes of the AGM. Given this circumstance, I have made an order declaring that the result of voting on Motions 3 and 4 was 2 yes votes and 1 no vote and that if it has not already done so, the body corporate is to immediately amend the minutes of the AGM.

The result of voting on Motion 5 still seems to be recorded as 2 yes votes and 1 no vote. The voting papers indicate the result should have been 1 yes vote and 2 no votes. Given the recorded result of voting, the Motion was carried indicating that the body corporate resolved not to audit the statement of accounts for the 12 month period ending 29 February 2008. A correct count of the votes shown in the voting papers gives a different outcome. Motion 5 required a special resolution (s106(1), Schedule Dictionary, Standard Module). Given the legislated requirement for the Motion’s wording, a person wanting the accounts audited must vote against the Motion (s106(8), Standard Module). The owners for two lots voted against the Motion. While these votes did not constitute more than 25% of the 9 lots included in the scheme or more than 25% of the total of the contribution schedule lot entitlements for all lots, at least two-thirds of the votes cast were not in favour of the motion (s106, Act). In these circumstances, the Motion was lost and the body corporate had resolved to audit its accounts for the 2007 to 2008 financial year. It is also relevant that the following Motion 6 was passed appointing Ryan Harvie McEnery to audit the accounts and the owner of Lot 6 now appears to support an audit. I have made an order to change the result of voting on Motion 5.

Given that an amendment will be necessary with respect to the result of voting on Motion 5, it is appropriate that owners receive an amended copy of the minutes. I have not put a time limit for doing this as it may for example, be appropriate to distribute the notice with other documentation (such as a notice of contribution payable). Further, it may be decided that the committee and not the body corporate manager will distribute the amended minutes. In these ways, there may be a cost saving to the body corporate. In any event, this is a matter for the body corporate committee (not the body corporate manager).

The committee
I note from the minutes of the AGM that the committee elected at the meeting was comprised of the applicant and the owner of Lot 6 as ordinary committee members. While this is not a matter for consideration in the determination of this dispute, it should be noted that the committee must consist of at least 3 voting members and that the positions of chairperson, secretary and treasurer must be filled (s9, Standard Module). The body corporate manager cannot be a voting member of the committee. The filling of the executive positions must happen even if a body corporate manager has been engaged.

It may be the body corporate has held an extraordinary general meeting to fill the vacant positions as required by sections 24 to 24C of the Standard Module. If it has not, then steps should be taken to fill the vacant positions as soon as possible and the 2 members chosen at the AGM should consider authorising the calling of an extraordinary general meeting for this purpose.

Whilst the terms of the engagement of the body corporate are not known, it should also be noted that where there is a committee, a body corporate may only engage a person as a body corporate manager to exercise some or all of the powers of an executive member of the committee (chairperson, secretary, treasurer), and the elected executive member cannot be prevented from exercising a power authorised by the body corporate or from directing the manager about how an authorised power is to be exercised (s119, Act).