Crystal Waters Permaculture Village [2009] QBCCMCmr 364 (24 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0380-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20926
Name of Scheme:	Crystal Waters Permaculture Village
Address of Scheme:	65 Kilcoy Lane CONONDALE QLD 4552

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

Michael Cowan, the Owner(s) of lot 63

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0380-2009

“Crystal Waters Permaculture Village” CTS 20926

Application

Crystal Waters Permaculture Village Community Titles Scheme (Crystal Waters) is an 85 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module).

This application is by Michael Cowan, an owner of lot 63 (applicant) seeking orders against the body corporate for Crystal Waters (respondent). The applicant refers to a letter sent by the committee claiming a number of resolutions passed since March 2003 were in doubt due to a failure to count the votes according to changed requirements for the passing of a special resolution. Reference is also made to a package of material prepared for the 5 April 2009 extraordinary general meeting indicating that four of these motions had not been resubmitted and would be treated as void. The applicant submits that these resolutions cannot simply be declared void by the committee and that the body corporate should follow the proper procedure for rescinding the motions or seek an order from an adjudicator regarding the validity of the motions.

Submissions on behalf of the body corporate were to the effect that the meeting of 5 April 2009 decided that there was uncertainty about the validity of the resolutions in question so these resolutions would not be treated as void pending further clarification being obtained.

Decision

I am satisfied that the committee is uncertain of the validity of the four resolutions in question but has decided not to treat these resolutions as void at the present time. The applicant and the committee are therefore in agreement that the resolutions in question are not to be treated as void at this time. As there is no proper dispute for me to determine the application must be dismissed.[1]

However, for the purpose of clarity, I am willing to express the view that the resolutions in question should be treated as validly passed unless expressly revoked by a resolution of the same type (Standard Module, 58) or declared invalid by order of an adjudicator (Act 242, 276).

In particular, I note that an application for an order declaring void a resolution must normally be made within three months of the meeting at which the resolution was passed or purported to be passed (Act, 242(2)). This shows a legislative intention that a failure to properly comply with the requirements for passing a resolution will not render the resolution automatically void.[2] The intention appears to be that a person reading the minutes of meeting should be able to assume a resolution was correctly passed unless that resolution is the subject of an application for an order declaring the resolution void.[3]

Conclusion

Because the committee decided not to treat the earlier resolutions as void for the time being there is no proper dispute for determination and the application must be dismissed. However, I hope the above comments provide some clarity and I note that any application to have the resolutions declared void should provide good reason for an adjudicator to waive the non-compliance with the three month time limit the legislation has set for applications to declare resolutions void (Act, 242(4)).

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[1] Tully v The Proprietors, The Nelson Body Corporate [2000] QDC 31, PD Robin QC, 10 March 2000.
[2] Except where specifically provided, eg section 72(5) of the Standard Module.
[3] See generally Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.