Attenborough 4 [2007] QBCCMCmr 659 (23 November 2007)

Last Updated: 11 August 2008

REFERENCE: 0755-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19
Name of Scheme:	Attenborough 4
Address of Scheme:	189 - 203 Mayers Street MANOORA QLD 4870

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

the Body Corporate for Attenborough 4.

I hereby declare that the Extraordinary General Meeting held on 10 September 2007 was validly called and held. I further declare that the Motions to remove Ms. Suzanna Racek as Chairperson/ Secretary Stephen Odri as Treasurer and Rod East as ordinary members of the committee, were effectively carried and became valid resolutions of the body corporate in general meeting.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0755-2007

“Attenborough 4” CTS 19

THE SCHEME

Attenborough 4 Community Titles Scheme is a scheme regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module). It consists of 16 lots registered on a Building Unit Plan of subdivision.

APPLICATION

The Applicant Body Corporate is seeking the following Final Outcomes:

A declaratory order that the EGM held on 10 September 2007 removing Suzanna Racek as Chairperson/ Secretary Stephen Odri as Treasurer and Rod East as ordinary members of the committee was validly called and held and the motions were correctly passed.

In response to an application by the Body Corporate for an Interim Order, I previously made the following order on 25 September 2007: that within seven (7) days of the date of this Order, Ms. Suzanna Racek, the former Chairperson/ Secretary of the Body Corporate Committee, is to hand over all body corporate records, documents, bank details and any other such material relating to the affairs of the Body Corporate, to the current Body Corporate committee.

BACKGROUND

As members of the body corporate would be aware, there has previously been a degree of apathy in this scheme. At an earlier AGM, only two persons, Messrs Odri and East, were elected as committee members, and as a result an administrator was appointed to carry out the functions of the committee for a period of 12 months commencing 15 March 2006, pursuant to Part 3, Division 10 of the Accommodation Module Regulation.

Although this appointment was for a period of 12 months, the administrator’s engagement continued past 14 March 2007 notwithstanding that section 35C of the Accommodation Module Regulation provides as follows:
Term of engagement

(1) Subject to subsection (2), the term of a person’s engagement as a body corporate manager under this division ends—

(a) at the end of the body corporate’s next annual general meeting held after the general meeting at which the engagement was approved; or

(b) 12 months after the day the engagement began; whichever is earlier.
(2) However, the body corporate may terminate the person’s engagement under part 6, division 4. (3) During the term of the engagement, the body corporate may not choose or purport to choose a
person as a committee member.

Messrs Odri and East subsequently lodged a dispute resolution application with this Office seeking a declaratory order that the committee should consist of Stephen Odri as Chairperson, Rod East as Treasurer and Suzanna Racek as Secretary. On 1 June 2007 I made an Order wherein I stated that any uncertainty regarding the position of Messrs Odri and East needed to be resolved and declared that Messrs Odri and East constituted the committee for the purposes of calling, holding and chairing an annual general meeting of the Body Corporate.

I understand that an AGM was held on 25 July 2007 and at that meeting, Ms Racek was appointed Chairperson / Secretary , Mr. Odri was appointed Treasurer and Mr East was appointed an ordinary member of the committee. However the applicant states that members of the body corporate subsequently lost faith in the committee and on the 4th and 5th August, a number of owners requested that an EGM be held, at which members could decide whether the committee should be replaced. I have been provided with a copy of the request for an EGM sent by 5 owners (31% of members) to the Secretary.

On 10 September, an EGM was held, and as none of the “previous committee” attended, the meeting was chaired by Mr. Devenish of Gadens, Lawyers, in accordance with section 44(2) of the Accommodation Module. At that meeting it was resolved that Ms Racek, Mr East and Mr Odri be removed from office and a number of new committee members were appointed.

The minutes of that meeting record the following:

Present : F & R Willis (lot 15), S Devenish (lot 8), K Tilley & J Hayden (lot 12), L Craig (lot 11), J Bitomsky (lot 3), N Zaga (lot 1).

Voting Papers: R East (lot 6), S Odri (lot 5), S Racek (lot 16), B Cameron-Smith (lot 2), M Batton & & M Hurcum (lot 4), L & S McCulloch (lot 7), N Zega (lot 1), R Willis (lot 15), J Hodges (lot 13), A Briers (lot 10), J Bitomsky (lot 3).

Resolved in accordance with section 23(2)(f) of the accommodation Module, Suzanna Racek be removed as Chair of the Committee of Body Corporate 4 “Attenborough”
Votes for:13, Votes against: Nil; Abstentions: 1

Resolved in accordance with section 23(2)(f) of the accommodation Module, Stephen Odri be removed from office as Treasurer of the Committee of Body Corporate 4 “Attenborough”
Votes for:13, Votes against: Nil; Abstentions: 1

Resolved in accordance with section 23B of the accommodation Module, the casual vacancy for Treasurer of the Committee of Body Corporate 4 “Attenborough” be filled by S McCulloch, lot 7.
Votes for:12, Votes against: 1; Abstentions: 1

Resolved in accordance with section 23(2)(f) of the accommodation Module, Rod East be removed from office as an ordinary members of the Committee of Body Corporate 4 “Attenborough”
Votes for:10, Votes against: 3; Abstentions: 1

Resolved in accordance with section 23B of the accommodation Module, the casual vacancy for ordinary members of the Committee of Body Corporate 4 Attenborough” be filled by N Zega (lot 1), M Hurcum (lot 4), L Craig and R Tjoeng (lot 8).

Votes for:12, Votes against: 1; Abstentions: 1

At the next meeting of the committee on 17 September, it was resolved that certain consequential vacancies be filled and that the previous committee be required to immediately deliver up all books and records of the scheme.

The resolution was brought to the attention of the previous committee members including the respondent, Ms Racek, the previous Chairperson/ Secretary, who refuses to acknowledge the new committee.

The minutes of that meeting record the following:

Motion 1 – That in accordance with section 23C of the Accommodation Module the casual vacancy for Chairperson on the committee caused by the removal from office of Suzanna Racek be filled by Frank Willis.

RESOLVED that the above Motion be carried Yes 4, No 0, Abstain 0

Motion 2 – That until the casual vacancy for Secretary on the committee is filled the Chairperson be authorised to give notices and advice of motions to be considered outside committee meetings.

RESOLVED that the above Motion be carried Yes 4 No 0 Abstain 0

Motion 3 – That the Chairman request the previous committee members (Suzanna Racek, Stephen Odri, and Rod East) to immediately deliver all books, records, bank accounts and other information in relation to the body corporate in their possession, power or control to the Chairperson or as directed by the Chairman.

RESOLVED that the above Motion be carried Yes 5, No 0, Abstain 0

Submissions

Pursuant to section 243 of the Act, submissions were sought from the respondent, all owners, the body corporate manager and committee.

Various lot owners made the following submissions:

• They are anxious to see the newly elected committee declared valid so that it can continue its work uninterrupted;
• The previous Chairperson was unreasonable and made many accusations against various persons without evidence;
• The majority of lot owners do not wish to have Messrs Odri, East and Racek on the committee and do not support most of the resolutions put forward by them;
• One lot owner stated that they have owned their lot since 1994 and enjoyed peaceful ownership until the previous Chairperson arrived and proceeded to launch crusades against various persons and organisations;
• Other lot owners have not seen any evidence to support the large number of accusations which have been widely circulated;
• the previous Chairperson claimed that her removal was invalid, then valid and then not valid. The majority of lot owners simply want to put behind them the emotional and traumatic last few months and return to normality;
• lot owners want stability restored to this scheme and a clear statement regarding the validity of the appointment of the current committee;
  

The previous Chairperson/ Secretary, Ms Racek, made the following submissions:

• The caretaker and letting agent have committed “an overwhelming number of contractual, code of conduct and legislative breaches” and she has lodged complaints with Queensland Police, the Privacy Commissioner, ASIC and the Office of Fair Trading;
• the Caretaking Service contractor has failed to properly maintain common property garden areas;
• the body corporate did not replace her and the other committee members in accordance with the procedures outlined in section 23AA of the Accommodation Module Regulation;
• For a number of other reasons the appointments of new committee members were invalid;
• The applicant has submitted false and misleading information to this Office;
• the “new committee” has committed breaches of the legislation;
• Mr Willis has not been validly appointed Chairperson or Secretary as claimed;
• Mr & Mrs Willis has refused to deal with her;
• The “new committee” has paid legal fees of an individual committee member;
• the Caretaking Service contractor has wrongly influenced the outcome of the committee election;
• Statutory notice periods for calling of the EGM were not complied with;
• At 10/ 9/2007 Mr Tjeong was not appointed as corporate nominee for Sunrest Pty. Ltd. the owner of lot 8;
• The owner of lot 7 previously owed substantial levies and has not actively participated as a committee member.
  

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)).

DECISION

The Applicant is seeking the following Final Outcomes:

A declaratory order that the EGM held on 10 September 2007 removing Suzanna Racek as Chairperson/ Secretary, Stephen Odri as Treasurer and Rod East as ordinary members of the committee was validly called and held and the motion was correctly passed.

In addition to the application and submissions from various lot owners, I have been provided with copies of the following documents:

• Requests to call an EGM;
• Notice of Meeting; and
• Agenda Voting paper.
  

As previously stated, I have perused each of the above and see no grounds upon which to challenge the validity of these documents. I note that on the 4th & 5th August 2007, 5 of the 16 lot owners (some 31%) requested the Secretary to call an Extraordinary General Meeting.
I have also sighted a copy of the notice of meeting dated 5 August as well as the accompanying voting paper, proxy form and corporate owner nominee form.

I also note that an EGM was held on 10 September and as none of the “previous committee” attended, the meeting was chaired by Mr. Devenish of Gadens, Lawyers, in accordance with section 44(2) of the Accommodation Module. At that meeting it was resolved that Ms Racek, Mr East and Mr Odri be removed from office and new committee members were appointed. While I note that Mr. Devenish attended as the corporate nominee for the owner of lot 8, this does not preclude Mr. Tjeong from becoming a member of the committee.

The minutes of that meeting record the following:

Present : F & R Willis (lot 15), S Devenish (lot 8), K Tilley & J Hayden (lot 12), L Craig (lot 11), J Bitomsky (lot 3), N Zaga (lot 1).

Voting Papers: R East (lot 6), S Odri (lot 5), S Racek (lot 16), B Cameron-Smith (lot 2), M Batton & & M Hurcum (lot 4), L & S McCulloch (lot 7), N Zega (lot 1), R Willis (lot 15), J Hodges (lot 13), A Briers (lot 10), J Bitomsky (lot 3).

Resolved in accordance with section 23(2)(f) of the accommodation Module, Suzanna Racek be removed as Chair of the Committee of Body Corporate 4 “Attenborough”
Votes for:13, Votes against: Nil; Abstentions: 1

Resolved in accordance with section 23(2)(f) of the accommodation Module, Stephen Odri be removed from office as Treasurer of the Committee of Body Corporate 4 “Attenborough”
Votes for:13, Votes against: Nil; Abstentions: 1

Resolved in accordance with section 23B of the accommodation Module, the casual vacancy for Treasurer of the Committee of Body Corporate 4 “Attenborough” be filled by S McCulloch, lot 7.
Votes for:12, Votes against: 1; Abstentions: 1

Resolved in accordance with section 23(2)(f) of the accommodation Module, Rod East be removed from office as an ordinary members of the Committee of Body Corporate 4 “Attenborough”
Votes for:10, Votes against: 3; Abstentions: 1

Resolved in accordance with section 23B of the accommodation Module, the casual vacancy for ordinary members of the Committee of Body Corporate 4 Attenborough” be filled by N Zega (lot 1), M Hurcum (lot 4), L Craig and R Tjueng (lot 47).
Votes for:12, Votes against: 1; Abstentions: 1

Subsequently, at the following meeting of the committee on 17 September, it was resolved that certain consequential vacancies be filled and that the previous committee be required to immediately deliver up all books and records of the scheme.

The minutes of that meeting record the following:

Motion 1 – That in accordance with section 23C of the Accommodation Module the casual vacancy for Chairperson on the committee caused by the removal from office of Suzanna Racek be filled by Frank Willis.
RESOLVED that the above Motion be carried Yes 4, No 0, Abstain 0

Motion 2 – That until the casual vacancy for Secretary on the committee is filled the Chairperson be authorised to give notices and advice of motions to be considered outside committee meetings.
RESOLVED that the above Motion be carried Yes 4 No 0 Abstain 0

Motion 3 – That the Chairman request the previous committee members (Suzanna Racek, Stephen Odri, and Rod East) to immediately deliver all books, records, bank accounts and other information in relation to the body corporate in their possession, power or control to the Chairperson or as directed by the Chairman.
RESOLVED that the above Motion be carried Yes 5, No 0, Abstain 0

On the material at hand, I believe that the EGM was properly called and certain committee members were validly replaced by way of an ordinary resolution in accordance with section 23(2)(f) of the Accommodation Module. The body corporate has chosen to replace certain committee members in this manner rather than go through the various steps required where removal of committee members is sought pursuant to section 23AA of the Accommodation Module.

While voluminous submissions by Ms. Racek included numerous allegations against past and previous committee members and also against the current Service Contractors, this material was of limited relevance to the matters in issue i.e. whether he Extraordinary General Meeting held on 10 September 2007 was validly called and held and whether motions to remove Ms. Suzanna Racek , Stephen Odri and Rod East as committee members, were effectively carried.
I believe there is little substance to claims that Messrs Tjeong, McCulloch, Batton and Willis were not validly appointed as members of the committee.

Further, for the purposes of this determination, it is not relevant for me to consider the various claims of misconduct regarding the caretaking service contractor, including claims that the caretaking service contractor has not complied with the terms of the caretaking agreement or has breached the applicable code of conduct. Ms Racek may wish to raise these matters with fellow lot owners for the purposes of considering whether a separate dispute resolution application should be lodged regarding alleged breaches of contract.

I therefore propose to make the following declaratory order:

that the EGM held on 10 September 2007 removing Suzanna Racek as Chairperson/ Secretary Stephen Odri as Treasurer and Rod East as ordinary members of the committee was validly called and held and the motion was correctly passed.