Almega Court [2010] QBCCMCmr 479 (20 October 2010)

Number of Scheme:	11108
Name of Scheme:	Almega Court
Address of Scheme:	30 Duet Drive MERMAID WATERS 4159

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Lois Jones, the owner of Lot 2

I hereby declare that the Extraordinary General Meeting of the body corporate for Almega Court community titles scheme 11108 held on 30 June 2010 is void because it was not called in accordance with the Body Corporate and Community Management (Standard Module) Regulation 2008.

The scheme
“Almega Court” community titles scheme 11108 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application made on 16 July 2010 (amended 4 August) is by Lois Jones, the owner of Lot 2 (Applicant) against the Body Corporate seeking an outcome that the Extraordinary General Meeting held on 30 June (EGM) be declared invalid and that any motions and minutes of the meeting be declared invalid.

The Applicant submits that the EGM was only requested by the owner of Lot 1 contrary to section 67 of the Standard Module. She states the only votes in favour of the motions were from the owner of Lot 1. The Applicant states the body corporate manager informed the meeting that only two owners were financial and able to vote and of the valid voting papers, one was for the motion and one was against and therefore the motions were lost.

The Applicant provided a copy of the notice of the EGM which included a voting paper listing two motions proposed by Paul Wilson and requiring an ordinary resolution. The first motion proposed approving expenditure to rectify internal faults to Lot 1. The second motion proposed approving a company (two listed) to rectify the faults caused to Lot 1. The Applicant also provided a copy of the minutes of the EGM which noted a letter from Mrs Jones that the meeting had not been called in accordance with the Act. It is minuted that Motions 1, 2(a) and 2(b) were defeated, and that a motion was moved about owners putting a proposal to the owner of Lot 1 regarding rectifying faults in the lot.

Submissions to the commissioner
On 5 August, the commissioner provided a copy of the application to the Body Corporate for distribution to the owner of each lot (excluding the Applicant), with an invitation to respond to the matters raised in the application (s 243, Act).

Mr Wilson of Lot 1 submitted he spoke to Steve Silansky about an extraordinary general meeting and he was in agreement that the meeting should go ahead. He provided a copy of an email to Steve dated 1 June referring to a second quote, that he should have the other from JHA and the body corporate ombudsman has advised that two quotes is sufficient for a general meeting. Mr Wilson points out that the motions were voted against at the EGM. He provided a copy of an email dated 1 July from Steven Silansky saying there is an agreement in principal between five unit owners and the owner of unit 1 for a Body Corporate contribution of $15,000 to repairing unit 1. Mr Wilson states to date this has never been formally tabled.

Adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication. An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act).

It is apparent from the copy of the notice and minutes of the EGM provided by the Applicant that the voting paper listed items related to rectifying faults in Lot 1. It would seem from submissions that building defects and the consequential effects of those defects on a lot/s included in the scheme has been an issue for this Body Corporate for some time. I also note the previous order of an adjudicator under the dispute resolution provisions of the Act on 24 November 2009 (Almega Court [2009] QBCCMCmr 465 (24 November 2009)).

It is not certain if the business of the EGM related to work mentioned in the previous order. However, the work stated in the motions listed in the voting paper of the meeting is not a matter to be determined in this application. This dispute relates to the calling and conduct of the EGM.

The minutes of the EGM record that Motions 1 and 2 were defeated on the votes. Although she appears to have a different reason, the Applicant submits the motions were lost. The result of voting is confirmed by Mr Wilson. In this circumstance, it could be argued there is no purpose to the outcome sought. The Body Corporate has opposed the proposals put to it. However, I do not believe the decisions made necessarily prevent consideration of the outcomes sought.

A body corporate must hold meetings of the types and for the purposes prescribed under the Standard Module, and must conduct meetings in the prescribed way (s 104(1), Act). A general meeting may be called if authorised by the committee or upon receipt of a request from owners (s 65 and 67, Standard Module). A requested extraordinary general meeting must only be called if a notice asking for the meeting to consider and decide motions proposed in the notice is signed by or for the owners of at least 25% of all the lots included in the scheme (s 67(1), Standard Module).

There is nothing to suggest the EGM was called as a consequence of an authorising committee resolution. The Applicant states the meeting was called as a consequence of a request from only one owner. Mr Wilson submits he had the verbal agreement of Mr Silansky.

There are six lots included in this scheme. A notice requesting an extraordinary general meeting must be signed by or for at least two owners. The problem in this case is the claimed verbal agreement of Mr Silansky. There is nothing to suggest Mr Silansky agreed in writing to request an extraordinary general meeting to consider the motions stated in the voting paper for the EGM. In my view, the claimed verbal agreement does not constitute compliance with section 67(1). The meeting should not have been called on this basis. The notice of the meeting should only have been issued with the proper authority. Because there is no evidence notice was properly issued, the EGM was not convened in accordance with the regulation.

For this reason, I have ordered the EGM is void. In this circumstance and because the motions were not passed, there is no reason to give consideration to the motions voted on at the meeting or the voting at the meeting. However, there are a couple of issues that should be noted.

Firstly, Motion 2 on the voting paper proposed approving a company to rectify faults in Lot 1. There was no capacity in Motion 2 for a vote to be taken on this introduction. It may be this was the purpose of Motion 1. If two or more motions proposing alternative ways of dealing with the same issue are submitted as motions for consideration at a general meeting, the motions must be listed as alternatives under one motion (s 72, Standard Module). Motions 1 and 2 are not a motion with alternatives. In Motion 2, voters were asked to vote on each of the companies. Given the way the alternative companies were presented, persons could vote for both or against both notwithstanding the suggestion in the introduction about approving one company. Conceivably, both quotations could have been accepted.

In my view, at least Motion 2 should have been listed on the voting paper as a motion with alternatives. If it had been presented in this way, the motion could have proposed the Body Corporate approving work in Lot 1. Voters would be asked to vote for, against or abstain from voting on this motion which would be decided by ordinary resolution. If a person voted for the motion, he/she would also vote for an alternative (one of the companies who had quoted to do the work mentioned in the motion). If the person voted against the motion, he/she would not vote for an alternative (see s 73(4), Standard Module). If the motion is passed, the alternative with the most votes is the body corporate’s decision. It should be noted that if more than one motion about the same issue is stated in a voting paper, all motions about the issue are void (s 72(5)).

Secondly, the minutes record that a motion was moved at the meeting. It should be noted that a general meeting may pass a resolution on a motion only if the motion is included as an item of business on the meeting’s agenda and stated in the voting paper (s 87(5)(a), Standard Module).

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Almega Court [2010] QBCCMCmr 479 (20 October 2010)