Surfers Palms North [2009] QBCCMCmr 358 (21 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0292-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20846
Name of Scheme:	Surfers Palms North
Address of Scheme:	2 St Kevins Court BENOWA QLD 4217

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

David Abbott, Dennis Hayde and Alex Nicol, owners and/or committee members

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0292-2009

“Surfers Palms North” CTS 20846

Application

Surfers Palms North Community Titles Scheme (SPN) is a 61 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application by David Abbott, Dennis Hayde, and Alex Nicol as owners and/or committee members (applicants) against the body corporate for SPN (respondent).

Decision

Background

The application was initially lodged on 26 March 2009 but was amended since that date. Originally an interim order was sought to stop the body corporate holding an annual general meeting on 28 April 2009 without notice to owners. Ultimately, an interim order was granted to allow an independent third party to call, hold and chair an annual general meeting. This meeting was held on 25 August 2009 and I have been provided with minutes of this meeting.

Final outcomes sought

The final outcomes sought were for:

1. Cancellation of the Surfers Palms North Annual General Meeting (AGM) possibly being scheduled for 28 April 2009.

2. Granting of an extension for the AGM to be held at a date that allows sufficient time for committee nominations and motions to be re-submitted by owners and preparation of a realistic budget based on up-to-date (current) financial records.

3. Appointment of an Administrator (Mrs Coralie Mott of CTS Management Pty Ltd or Judy Gibson) to conduct the AGM and look after the body corporate management until a committee has been established following the AGM.

4. Immediate cancellation of any/all agreements the body corporate holds with Capital Body Corporate Administration to provide services to the body corporate and immediate transfer of all body corporate books and records to Mrs Coralie Mott of CTS Management Pty Ltd as well as immediate cancellation of staff of Capital Body Corporate Administration as signatories to the body corporate bank accounts.

5. An immediate stop to be placed all payments from body corporate funds except payments for essential services such as electricity and the monthly payment to the caretaker/letting agent as per the caretaking agreement.

6. Appointment of an Administrator (Ms Judy Gibson) to the position of Chairman of the body corporate committee until the AGM of 2010. This is to provide an opportunity for management of the Body Corporate to be improved to a point where the Committee is able to take full control and with effective financial management and management of the complex in place. Ms Gibson to be appointed as one of the signatories for approval of payments.

Conclusion

It became obvious in the submissions that the committee did not intend to hold an annual general meeting on 28 April 2009 without notice to owners. However, there were also obvious concerns with a proposed annual general meeting called for 26 May 2009 and I ultimately authorised an independent third party to call, hold and chair an annual general meeting.

I note that this interim order effectively gave the applicants final outcomes 1 and 2 above. In relation to final outcomes 3 to 6, the minutes of the annual general meeting of 25 August 2009 indicate that a new chairperson and body corporate manager have now been appointed.
Owners have exercised their vote to express their preference as to who should be appointed to assist in the administration of the scheme and it is not appropriate to grant any of outcomes 3 to 6 against this background. In fact, it appears unlikely from the expressed grounds that even the applicants would now actively seek any of the outcomes 3 to 6 given the outcome of the annual general meeting. The application will therefore be dismissed.

Order

For these reasons, the application is dismissed.