Gold Coast Summer Waters Resort [2010] QBCCMCmr 399 (27 August 2010)

Number of Scheme:	25761
Name of Scheme:	Gold Coast Summer Waters Resort
Address of Scheme:	43 Myola Court, COOMBABAH QLD 4216

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

I hereby order that the Body Corporate Committee resolution dated 15 February 2010 is invalid insofar as it purports to remove Jeffery Boyce, Co-owner of Lot 33, from the committee.

I hereby declare that nothing in the Body Corporate Committee minutes dated 15 February 2010 or 1 May 2010 is sufficient to authorise the removal of Jeffery Boyce, Co-owner of Lot 33, from the committee.

I further order that the outcome of this Application is to be noted in the next Body Corporate Committee meeting minutes.

The Gold Coast Summer Waters Resort community titles scheme 25761 (Gold Coast Summer Waters Resort) consists of 42 lots and common property. The community management statement (CMS) for Gold Coast Summer Waters Resort indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (”Accommodation Module”) applies to the scheme.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Jeffery Boyce, Co-owner of Lot 33 (the applicant) on 16 June 2010. The applicant sought orders against the Body Corporate for Gold Coast Summer Waters Resort (the respondent) in the following terms:

Under section 243 of the Act, a copy of the application was provided to the body corporate, with an invitation to the Body Corporate Committee (the committee) and all owners to respond to the matters raised by the application. Several submissions were received. The applicant inspected the submissions received and made a written reply.[1] A dispute resolution recommendation was then made referring the dispute to departmental adjudication.

The application relates to the committee’s decision to remove the applicant from the committee. The facts of the dispute can be summarised as follows.

On 15 February 2010, the committee resolved (via a vote outside a committee meeting) to remove the applicant from the committee. The relevant sections of the motion are set out below:

“In accordance with the Code of Conduct for Committee members under the Body Corporate & Community Management Act a Committee member must not cause a nuisance.

Mr. J. Boyce (Treasurer) has continually caused a nuisance to members of the Committee and the On-site Manager.
It was resolved that Mr. Boyce be removed as a Committee member immediately.”

This motion was passed with six committee members voting in favour of the motion.

The minutes of the committee meeting dated 1 May 2010, state that the decision to remove the applicant from the committee “had been made, and minuted, by the Committee on the 15th February, 2010 in accordance with the Code of Conduct for Committee members...”. In addition, the minutes state that “My Boyce is no longer a Committee member...”.

Submissions were received from Colin Whitaker, Sue Whitaker (on behalf of the committee) and Philip Jeffery opposing the application. These submissions state the following:

In reply to the submissions received the applicant stated that the committee, by removing him from the committee, has acted outside the legislation.

On 26 August 2010, I requested that a member of our Office contact the Body Corporate Manager and obtain a copy of the 2009 Annual General Meeting (AGM) minutes in which the applicant was elected to this committee. Our Office received this information later that day.

Further, on 26 August 2010, I requested that a member of our Office contact the Body Corporate Manager and enquire whether the 2010 AGM had been held. A file note of that conversation indicates that the 2010 AGM will be held on 28 September 2010.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2] 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:

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(i) the engagement of a person as a body corporate manager or service contractor; or

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

The relevant sections in this matter are sections 33, 34 and 35 of the Accommodation Module. These sections are set out in full below:

(1) The term of office of a member of the committee continues until another person is chosen for the position.

(d) is not present personally or by proxy at 2 consecutive meetings of the committee without the committee’s leave; or

(e) is convicted (whether or not a conviction is recorded) of an indictable offence; or

(3) For subsection (2)(b), without limiting the reasons a member may become ineligible to hold the member’s position, a member is ineligible to hold the member’s position if the member—

(a) was a member of the body corporate at the time the member was elected but is no longer a member of the body corporate; or

(b) was not a member of the body corporate at the time the member was elected and was nominated for membership by a member of the body corporate who is no longer a member of the body corporate; or

(c) is engaged as a body corporate manager or service contractor, or authorised as a letting agent.

(4) If the body corporate engages a body corporate manager under a chapter 3, part 5 engagement—

(a) the term of office of a member of a committee for the body corporate ends; and

(5) To remove any doubt, it is declared that subsections (1) to (3) do not apply to a non-voting member of the committee.

(1) If a body corporate believes a voting member of the body corporate’s committee has breached the code of conduct for the member, the body corporate may decide, by ordinary resolution, to give the member a written notice stating each of the following—

(a) that the body corporate believes the member has breached a stated provision of the code of conduct;

(c) that the member may give any other member of the body corporate, within the stated period of at least 21 days after the member is given the notice, a written response to the notice in not more than 600 words;

(d) that, if asked by the member, the body corporate will pay the member all postage charges and photocopy expenses reasonably incurred by the member in giving a written response under paragraph (c) to any other member of the body corporate;

(e) that the body corporate is to consider a motion to remove the member from office for the breach at the next general meeting of the body corporate called after the period mentioned in paragraph (c) ends.

(2) If asked by the member, the body corporate must pay the member all postage charges and photocopy expenses reasonably incurred by the member in giving a written response under subsection (1)(c) to any other member of the body corporate.

35 Removal of voting member at general meeting for breach of code of conduct—Act, s101B [SM, s 35]

(a) a body corporate gives a voting member of the body corporate’s committee a notice under section 34(1); and

(a) include on the agenda of the next general meeting of the body corporate, called after the period mentioned in section 34(1)(c) ends, a motion to remove the member from office for breaching the code of conduct for the member; and

(3) The member may be removed from office, by ordinary resolution, at the next general meeting mentioned in subsection (2)(a).

The main issue for consideration in this matter is whether the committee’s decision to remove the applicant from the committee was valid.

There are two ways in which a committee member may be removed from the committee – pursuant to section 33(2)(f) of the Accommodation Module or pursuant to sections 34 and 35 of the Accommodation Module. These sections will be addressed below.

Section 33(2)(f) of the Accommodation Module states that a committee member’s position becomes vacant if the member is “removed from office by ordinary resolution of the body corporate”. Therefore, it seems that a committee member will be removed from their position pursuant to section 33(2)(f) if a motion seeking the removal of the person from the committee is submitted to a general meeting and passed by an ordinary resolution of the body corporate. There is no requirement under this provision for any reasons to be given regarding the removal of the committee member or any specific opportunity for the committee member named in the motion to respond to the motion. This conclusion is further supported by the following cases.

“Section 25(2)(f) [now known as section 33(2)(f) of the Accommodation Module] has long been relied upon as the process which may be used by the body corporate to remove a committee member from office if it is the wish of the lot owners at a general meeting to do so.[6] The section does not require any blame to be laid, or a case to be made out. It relies on the satisfaction of lot owners with their committee members, and gives a body corporate power to change or “spill” the committee during the scheme year...” (underlining mine).

“...section 33(2)(f) of the Standard Module [equivalent to section 33(2)(f) of the Accommodation Module] provides that a committee member’s position becomes vacant if they are removed from office by ordinary resolution of the body corporate...Provided the body corporate passes an ordinary resolution that a committee member be removed from their position, that is all that is required. There is no need to provide any reason or for the member to have committed a breach of the Code of Conduct first” (underlining mine).

Moreover, when considering the removal of a committee member pursuant to section 33(2)(f) of the Accommodation Module, Adjudicator Dowling in Logan Manor Two[8] stated:

“...there is no legislative requirement for the member named in the motion...to know the reason/s for the proposed motion or to be given opportunity to respond to the motion.”

In this instance, I note that the applicant was purportedly removed from the committee pursuant to a committee resolution dated 15 February 2010 (not an ordinary resolution of the body corporate). Accordingly, I am of the opinion that the said committee resolution dated 15 February 2010 does not meet the requirements as set out in section 33(2)(f) of the Accommodation Module.

The second method in which a committee member may be removed from the committee is pursuant to a breach of the code of conduct as set out in sections 34 and 35 of the Accommodation Module.

Section 34 of the Accommodation Module states that if the body corporate believes a voting member of the committee has breached the code of conduct, “...the body corporate may decide, by ordinary resolution, to give the member a written notice...” regarding the breach. That member of the committee then has 21 days to respond to the notice.[9] Section 35 of the Accommodation Module states that if the body corporate gives a member of the committee a notice under section 34 of the Accommodation Module and the 21 day period for a response has ended, the body corporate must include on the agenda of the next general meeting a motion to remove the committee member. If the motion is passed by an ordinary resolution, the member will be removed from their position as a committee member.[10]

Based on the evidence before me, I am satisfied that the procedure as set out under sections 34 and 35 of the Accommodation Module for the removal of a committee member for a breach of the code of conduct has not been followed. In particular, I note that the body corporate has not even considered, at a general meeting, whether or not to give the applicant a written notice pursuant to section 34(1) of the Accommodation Module. Accordingly, I am of the opinion that the committee resolution dated 15 February 2010 purporting to remove the applicant from the committee does not meet the requirements as set out in sections 34 and 35 of the Accommodation Module.

As stated above, there are two methods in which a committee member may be removed from office – pursuant to section 33(2)(f) of the Accommodation Module or sections 34 and 35 of the Accommodation Module. While I note that the committee attempted to remove the applicant from the committee pursuant to a committee resolution dated 15 February 2010, I am not satisfied that this committee resolution meets the requirements as set out in either of the above sections. Accordingly, I am not satisfied that anything in the committee minutes dated 1 May 2010 or the purported committee resolution dated 15 February 2010 is sufficient to authorise the removal of the applicant from the committee. On this basis, I am making the orders as set out above.

[1] See sections 246 and 244 of the Act respectively.
[2] See sections 227, 228, 276 and Schedule 5 of the Act.
[3] Section 276(2) of the Act.
[4] Section 284(1) of the Act.
[5] Silverton [2008] QBCCMCmr 213 (25 June 2008).
[6] 0601-2000 Magic Mountain Apartments; 0525-2003 Centrepoint; 1024-2007 Coronaton Gardens.
[7] Mawson Place [2010] QBCCMCmr 52 (9 February 2010).
[8] Logan Manor Two [2009] QBCCMCmr 221 (15 June 2009).
[9] Section 34(1)(c) of the Accommodation Module.
[10] Section 35(3) of the Accommodation Module.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Gold Coast Summer Waters Resort [2010] QBCCMCmr 399 (27 August 2010)