Lakeview [2011] QBCCMCmr 139 (1 April 2011)

Last Updated: 17 June 2011

REFERENCE: 0272-2011

INTERIM ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Plan:	Lakeview
Address of Building or Parcel:	Ross Street BENOWA QLD 4217

TAKE NOTICE that pursuant to an application made under section 77 of the Building Units and Group Titles Act 1980 by Robin Waning, an owner of lot 22

I hereby order that the application for interim orders is dismissed. The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

STATEMENT OF REFEREE’S REASONS FOR DECISION - 0272-2011

“Lakeview” GTP 107127

Introduction

The Proprietors – Lakeview GTP 107127 (LBC) is a residential body corporate under the Building Units and Group Titles Act 1980 (BUGTA). LBC is a member of the Principal Body Corporate for Royal Pines Resort (PBC). This PBC is established under the under the Integrated Resort Development Act 1987 (IRDA) as part of the Royal Pines Resort.

Under IRDA, each body corporate that is a member of the PBC must elect a nominee to vote for their body corporate at PBC meetings.

The committee for LBC recently voted to remove Robin Waning as the nominee for PBC meetings and replace her with Craig Godfrey. Ms Waning seeks interim orders to confirm that she remains the nominee pending a final determination of this application. Final orders are sought to invalidate the purported committee resolutions and impose penalties on some of the persons involved.

When is an interim order justified?

An interim order is normally only justified when:

1. The application raises a serious question that will need to be determined; and
2. The inconvenience likely to result from the interim order is outweighed by the potential detriment if the order is not granted.

Analysis

Concerns about the validity of the committee meetings

Sections 40-48B provide for matters relating to the committee for LBC. Specific requirements for committee resolutions include:

• An agenda for a committee meeting must be displayed on the body corporate noticeboard prior to the meeting, even for a vote conducted in writing (BUGTA, Schedule 4 – items 6 and 7).
• Each committee member must be notified of meetings, including any proposed vote in writing (BUGTA, Schedule 4 – item 7).
  

Ms Waning says there was no proper notification for the committee votes of 11 and 18 March 2011. This is an issue that will need to be determined before any final orders can be made.

Concerns about the validity of the appointment of a PBC nominee

Section 40(2) of IRDA provides:

A subsidiary body corporate of the principal body corporate—

(a) must appoint a nominee at its annual general meeting;

and

(b) otherwise, may appoint a nominee from time to time.

It seems to be common ground in the submissions that nominees were appointed by a committee vote. This raises questions about the validity of Ms Waning’s initial appointment as well as the purported appointment of Mr Godfrey.

No interim order justified

The body corporate manager says that the committee is now aware the appointment of the nominee for the PBC should be made by owners in general meeting. The committee requests that no order be made until the committee has been given a reasonable time to call an extraordinary general meeting to allow for a valid appointment to be made.

As there are questions regarding the validity of the appointment of both Ms Waning and Mr Godfrey, I do not consider it appropriate to make an interim order that would allow either of them to hold the nominee position. The proposed calling of an extraordinary general meeting seems the most appropriate way to resolve this issue.

Other matters

Ms Waning has recently sought to amend her application based on some further information. This further information does not alter my conclusions above in relation to the interim orders sought and it is not appropriate to allow an amendment based on this further information at this time. Ultimately the present dispute appears likely to be able to be resolved by way of a vote at an extraordinary general meeting. Ms Waning may therefore wish to wait until after that time before seeking to withdraw her application or before seeking any further amendments.

Ms Waning also raises concerns about the appointment of committee members to fill committee vacancies. However, it is not immediately apparent from the grounds that the remaining committee members did not properly fill these vacancies as provided for in section 43(2) or 43(3) of BUGTA. There is no requirement for committee vacancies to be filled by vote in general meeting rather than by committee resolution.

Finally, Ms Waning seeks the imposition of penalties upon the secretary, body corporate manager and some other persons. A Referee has no power to impose fines or penalties for a contravention of the legislation. If Ms Waning wishes to pursue this type of claim then she may wish to seek legal advice regarding the viability of bringing separate court proceedings under the Justices Act (BUGTA, 133).

Conclusion

As there is doubt over the validity of both the appointment of Ms Waning and her subsequent replacement by Mr Godfrey, the application for interim orders will be dismissed.

I expect all parties will be willing to accept the nominee appointed by owners by a vote at the proposed extraordinary general meeting. However, if necessary, the application for final orders can be amended and final orders can be determined in due course.