Hevan [2008] QBCCMCmr 274 (8 August 2008)

Last Updated: 12 September 2008

REFERENCE: 0349-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32175
Name of Scheme:	Hevan
Address of Scheme:	35 Tullylease Place CHERMSIDE WEST QLD 4032

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

Barry & Robyn Casey, the Owner(s) of lot 5

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0349-2008

“Hevan” CTS 32175

Application

Hevan Community Titles Scheme (Hevan) is an 11 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Barry and Robyn Casey, the owners of lot 5 (applicants) seeking orders against the body corporate for Hevan (respondent). The applicants are seeking an order to require the body corporate to hold an annual general meeting for 2008.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the applicants, were to the effect that:

• An annual general meeting was scheduled for 3pm on 25 March 2008 in accordance with the Act;
• The chairperson then postponed the meeting and the body corporate manager proposed to hold the meeting at its offices on Tuesday 1 April 2008 but the chairperson told owners that the meeting would be held onsite the following Saturday so no owners went to the meeting on Tuesday 1 April 2008. The body corporate manager subsequently distributed minutes showing that no one attended the meeting on Tuesday 1 April 2008 and that each motion therefore failed; and
• There are therefore sufficient grounds to declare that an annual general meeting has not been held, contrary to the legislation.
  

All owners were given an opportunity to provide written submissions. The main submissions by a number of owners were to the effect that:

• On the date of the scheduled annual general meeting it became apparent that there would not be enough attendees to make a quorum for the meeting;
• The body corporate manager said it was not possible to change the date of the meeting but that the meeting would be adjourned to a date seven days later;
• One of the applicants requested that three weeks’ notice be issued to all lot owners for the adjourned meeting. In compliance with this request a date in May was selected and the body corporate manager was notified;
• However, by this time seven days had passed and the body corporate manager said that the adjourned meeting had already proceeded as required by legislation. However, as no one had attended the adjourned meeting the body corporate manager suggested that all motions be considered again at an extraordinary general meeting. This extraordinary general meeting was held on 7 May 2008.
  

The applicants exercised their right to inspect the submissions and then replied to those submissions to the effect that:

• The applicants requested on 27 March 2008 that the meeting be rescheduled according to the legislation and the body corporate manager responded the following day stating that the legislation requires the adjourned meeting "is exactly 7 days hence, or failing that, full notice should be given (21 days)";
• The postponed meeting should therefore have been held prior to 30 April 2008 with 21 days’ notice.
  

The above submissions dealt satisfactorily with the issue of the 2008 annual general meeting that is the subject of this application. It was therefore unnecessary for me to carry out any further investigation of the issues.[1] However, I note that a number of other matters were referred to in submissions but were not relevant for determination of the present application and were therefore not considered further.

Issues for determination

Applicable law

The legislation includes provisions to the effect that:

• An annual general meeting must be held within three months after the end of each of the scheme’s financial years (Standard Module, 60);
• A quorum at a general meeting is at least 25% of the number of voters, except that normally two voters must be present personally (Standard Module, 48(2));
• If there is no quorum the meeting must be adjourned to be held at the same place, on the same day and at the same time, in the next week (Standard Module, 48(3)); and
• If at the adjourned meeting a quorum is again not present the persons present form a quorum if the chairperson is present personally or a body corporate manager exercising the powers of the chairperson under an authorisation given by the body corporate is present personally (Standard Module, 48(4)).

Findings

Minutes of an annual general meeting held on Tuesday 1 April 2008 have been provided. These minutes indicate that the meeting was originally set down for 23 March 2008 but adjourned for a lack of a quorum. Further, at the adjourned meeting on 1 April 2008, no voter was present personally so the meeting was chaired by a member of staff of the body corporate manager. These minutes also reflect that no voter had submitted a written voting paper so all motions failed with no votes in favour or against.

Practically speaking, the applicants are correct in asserting that there was therefore no effective annual general meeting for 2008. I also accept that the absence of any attendees at the attempted meetings is likely to have been contributed to by poor communication and misunderstandings between the chairperson and the body corporate manager.

However, by the time this application was lodged it was impossible for the body corporate to hold a new annual general meeting within three months of the end of its 2007-08 financial year. Instead, the body corporate held and extraordinary general meeting that considered all motions that would have been considered at the annual general meeting.

Conclusion

The body corporate for Hevan failed to hold an annual general meeting within the time required by the legislation. However, a general meeting was held shortly after the time required by the legislation and this meeting considered all matters that would have been considered at the annual general meeting. In these circumstances, I am not satisfied that it is necessary or appropriate to make any order requiring the body corporate to take any further steps. The application will therefore be dismissed.

Order

For these reasons, the application is dismissed.

---

[1] Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336, Jerrard JJA, Keane JJA, Cullinane J, 9 September 2005 at paragraphs 31 and 17.