Marina Houses [2010] QBCCMCmr 9 (7 January 2010)

Name of Plan:	Marina Houses
Address of Building or Parcel:	Rosebank Way West HOPE ISLAND QLD 4212

TAKE NOTICE that pursuant to an application made under section 77 of the Building Units and Group Titles Act 1980 by Archie Titchosky, Barbara Scott, Gary Medley and Kenneth Ellis, the Owners of lots 15, 9, 6 and 22

I hereby order that pending the making of final orders pursuant to this dispute resolution application the Body Corporate for Marina Houses is not to act upon any resolution upon motions 2 to 8 (inclusive) which are to be considered at an Extraordinary General Meeting which is scheduled to be held at 7:30 PM on 7 January 2010.

The applicants are members of the Body Corporate for Marina Houses GTP 102968 and submitted a dispute resolution application with this office on 5 January 2010 under the Building Units and Group Titles Act 1980.

That the EGM proposed for Thursday 7 January 2010 be postponed to a date not earlier than the 28th January 2010.

On the balance of convenience the proposed extraordinary General Meeting of the Marina Houses Body Corporate GTP 106928 to be held on Thursday 7 January 2010 be postponed and a properly convened EGM with appropriate notice that the EGM proposed for Thursday 7 January 2010 be postponed to a date not earlier than the 28th January 2010.

Part 5, division 3 of the Building Units and Group Titles Act 1980 makes provision for orders by a referee. Within division 3, section 77 provides general powers of a referee to make orders. Relevantly, section 77(1) provides a general power that a referee may on application of a body corporate ... a proprietor ... in respect of a parcel, make an order on any person entitled to make an application under this subsection ... for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel.

Following a requisition by 6 owners on 29 December 2009, An extraordinary general meeting has been scheduled for 7:30 pm on Thursday 7 January 2010 to consider the following motions:

1. Confirmation of Minutes;
2. Vacation of and appointment to the position of Chairman;
3. Vacation of the positions of ordinary committee members;
4. Appointment to the position of ordinary committee member;
5. Appointment to the position of ordinary committee member;
6. Appointment to the position of ordinary committee member;
7. Reinstate powers of Secretary;
8. Reinstate powers of Treasurer.

The applicants seek an interim order to postpone the meeting on the following grounds:

This application was submitted on the afternoon of 5 January and allocated to me as a referee on 6 January. Given that the meeting is due to be held on 7 January, it has not been feasible to seek detailed submissions from the respondents. Accordingly this application is dealt with on an ex parte basis in accordance with section 76(3) of the Building Units and Group titles Act 1980 which provides that an interim order may be made notwithstanding that any power or duty of the referee under section 73(1) to give written notice of the application to the body corporate and to any affected person has not been exercised.

The Building Units and Group titles Act 1980 (the Act) applies to this scheme and Part 5 of the Act concerns disputes and Part 5, division 3 makes provision for orders by a referee. Within division 3, section 77 provides general powers of a referee to make orders. Relevantly, section 77(1) provides a general power that a referee may on application of a body corporate or a proprietor ... in respect of a parcel, make an order on any person entitled to make an application under this subsection ... for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel.

At this point in time, I am concerned with the application for an interim order and the threshold issue of whether an interim order is warranted. Section 76(2) provides that where an applicant for an order under section 77(1) states in his or her application that the applicant requests an interim order, the referee may, if the referee is satisfied on reasonable grounds that, by reason of the urgent circumstances of the case, the referee should do so make, under this subsection, any order that may be made under section 77(1) with respect to the application. Section 76(3) provides that an interim order may be made notwithstanding that any power or duty of the referee under section 73(1) to give written notice of the application to the body corporate and to any affected person has not been exercised.

However, an interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates and the applicant needs to establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency relates to an applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order.

At this point in time I am considering the application for the following interim (or temporary) order:

That the EGM proposed for Thursday 7 January 2010 be postponed to a date not earlier than the 28th January 2010.

The bases upon which the applicants seek the above interim order include the following:

While I agree that the subject matter of the proposed motions should not be dealt with in haste, and that the persons requisition the general meeting have probably done so during the Christmas/ New Year period to achieve a tactical advantage, I do not believe that I am entitled to postpone the meeting upon these grounds.

What I do need to consider is whether the EGM was properly requisitioned and whether proper notice of the requisitioned meeting has been given in accordance with the Building Units and Group titles Act 1980.

Schedule 2 to the Building Units and Group titles Act 1980 (Part 2, clause 1(3) ) provides that an extraordinary general meeting may be requisitioned by 1 or more persons who hold at least one-fourth of the aggregate lot entitlements. In this regard I note that documentation accompanying the Notice of Meeting states that six residents requisitioned the subject general meeting. As there are 24 lots in this scheme, it is probable that the requirements of Schedule 2, Clause 1 (3) have been satisfied, although I would point out that It is not clear whether this equates to six lot owners, and if so whether these owners hold at least one-fourth of the aggregate lot entitlements.

Assuming that the requirements of Schedule 2 clause 1(3) have been met, the next matter for consideration is whether notice of the requisitioned meeting has been given in accordance with the Building Units and Group titles Act 1980, given that the notice is undated and there are doubts as to where the notice period prescribed by the legislation has been complied with.

Schedule 2 to the Building Units and Group titles Act 1980 (Part 2, clause 1(4)(a)) provides that notice of a general meeting of a body corporate shall be served on each proprietor and first mortgagee of a lot, as ascertained from the roll, at least 7 days before the meeting. I note that the subject meeting was requisitioned on 29 December 2009 and is scheduled for 7 January 2010. The Acts Interpretation Act 1954 contains certain provisions for the reckoning of time and section 38(1) of that Act suggests that the words ‘at least’ referred to above, means that both the day on which notice was given and the day of the meeting must be excluded from the calculation of the 7 day period.

Further, where notice of a general meeting is sent in the post, sections 39A(1)(b) and (3) of the Acts Interpretation Act 1954 provide that it would be deemed to be ‘given’ at the time at which the notice would have been delivered in the ordinary course of post, unless the contrary was proved.

The applicants have advised that there a number of absentee owners in this scheme who may reside interstate or overseas. Given the very limited period available to validly give notice of the EGM, it is a distinct possibility that adequate notice was not given to a number of lot owners. Of course there may be evidence to rebut my preliminary views in this regard, but at this point in time, it is impossible to determine with any certainty whether or not proper notice was given to all lot owners.

If proper notice has not been given to all lot owners, I believe that it would not be appropriate to merely postpone the meeting. In the circumstances I do not propose to prohibit the meeting from being held but I do propose to order that pending final resolution of this dispute, any resolutions carried at the meeting are not to be implemented. The practical effect is that the current committee members will continue to perform their functions at least until a final decision is made. Given the sensitivities of the application, I will seek to ensure that the final determinate is made as promptly as possible.

This determination does not dispose of this dispute in its entirety and this dispute resolution application will be further dealt with in accordance with the usual processes undertaken by this office which may include seeking further information from the applicant and submissions from the respondents and other residential bodies corporate. A final order regarding the application will be made in due course.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Marina Houses [2010] QBCCMCmr 9 (7 January 2010)