Pebble Beach Retirement Village [2011] QBCCMCmr 249 (9 June 2011)

Last Updated: 19 July 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Pebble Beach Retirement Village [2011] QBCCMCmr 249
PARTIES:	Body Corporate for Pebble Beach Retirement Village (applicant)
SCHEME:	Pebble Beach Retirement Village CTS 33548
JURISDICTION:	Body Corporate and Community Management Act 1997 (Qld), (Act), ss 227(2), 229(3)(a) Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module)
APPLICATION NO:	0529-2011
DECISION DATE:	9 June 2011
DECISION OF:	I Rosemann, Adjudicator
CATCHWORDS:	GENERAL MEETING PROCEDURES – whether the body corporate should be authorised to hold an extraordinary general meeting without 21 days notice. Act, ss 243A; Standard Module, ss 74.

ORDERS MADE:

I hereby order that an extraordinary general meeting of the Body Corporate for Pebble Beach Retirement Village, convened on 22 June 2011 for the purpose of considering motions to adopt a new community management statement, shall not be invalid simply because the requirement for 21 days notice in section 74 of the Body Corporate and Community Management (Standard Module) Regulation 2008 is not complied with, provided that the meeting is not held until at least seven (7) days after notice of the meeting is given to all lot owners.

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REASONS FOR DECISION
Overview

[1] This application seeks authorisation to hold an Extraordinary General Meeting (EGM) to consider an amendment to the community management statement (CMS) for the scheme, notwithstanding that the required notice for the meeting has not been given.
[2] It seems a new CMS has been approved by the Body Corporate, providing for a new stage (7B) in the development of the scheme, and was lodged with the Titles Office in May 2011. However since the CMS was approved, amendments to the Act which came into effect. These amendments require that any lot entitlements schedule adjusted after 14 April 2011 must include a statement regarding the principals applied to determine lot entitlements. Accordingly the Titles Office requires the CMS to be amended before it can be accepted. The Body Corporate says the delay in recording the CMS has postponed settlements for new residents. As such the Body Corporate says it is urgent that the CMS be corrected and re-lodged.
[3] The Annual General Meeting (AGM) has been set for 22 June 2011, with notices issued. To avoid the need to call a separate meeting soon after, and because of the urgency of the CMS issue, the Body Corporate would like to hold an EGM on the same day as the AGM to seek owners’ approval of the corrected CMS.
[4] The issue then is whether it would be appropriate to permit the Body Corporate to hold the proposed EGM on 22 June 2011 with less than the required 21 days notice of the meeting.

Procedural matters

[5] Pebble Beach Retirement Village community titles scheme 33548 (PBRV) consists of 79 lots and common property. The CMS shows the Standard Module applies. The scheme is registered as Survey Plans 171111-7 and 231391.
[6] This application was lodged under the Act on 8 June 2011, pursuant to a resolution passed outside a Committee meeting on 7 June 2011, seeking a declaratory order as follows:

Permission to hold an EGM on 22 June 2011 for the lot owners to consider a motion to insert the statement regarding lot entitlements as shown in schedule A of the CMS attached. Declare the notice valid even though it will be provided to owners with less than 21 days notice.

[7] I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[1] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about: a claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS.[2] An order may require a person to act, or prohibit a person from acting, in a way stated in the order. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]
[8] I note also that section 243A of the Act provides as follows:

243A Referral to dispute resolution officer in emergency

(1) This section applies if the commissioner reasonably considers—

(a) an application should be immediately referred to a dispute resolution officer because it relates to emergency circumstances; and

Example of emergency circumstances—

a burst water pipe the repair or replacement cost of which exceeds the body corporate committee’s expenditure limit under the regulation module applying to the scheme

(b) it is not appropriate to deal with the application under section 247.

(2) The commissioner may immediately refer the application to a dispute resolution officer without giving written notice as mentioned in section 243(1).

Determination

[9] Section 74 of the Standard Module requires a general meeting to be held at least 21 days after notice of the meeting is given to all owners. However, where appropriate, an adjudicator can make a declaration authorising a shorter notice period.
[10] There is no basis to suggest that the Committee has not acted properly or in good faith in this matter. The effect of the new amendments or the date of their commencement may well not have been known at the time that the Body Corporate originally approved the new CMS.
[11] I accept that there is a degree of urgency in the current circumstances, such that it is desirable for the CMS issue to be corrected as soon as possible. Moreover, there would be an undesirable cost in holding a second general meeting to consider only one motion so quickly after the AGM.
[12] In addition, the change to the original CMS is arguably a minor and technical correction only. Having already considered and approved the substance of the new CMS there is unlikely to be considerable concern or need to investigate and evaluate the corrected CMS. Accordingly I do not believe that this shortening of the notice period would disenfranchise voters or materially disadvantage owners from properly considering the issue.
[13] In the circumstances that I am of the view that, providing that owners are given at least seven days notice of the EGM, it is appropriate to authorise the Body Corporate to consider the corrected CMS at the EGM on 22 June 2011.
[14] The Committee will need to ensure that notice of the EGM is sent urgently to comply with the requirement for seven days clear notice. The Committee would be advised to inform owners of this order and the reasons for it so that there is no confusion regarding this matter.

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[1] See sections 227, 228, 276 and Schedule 5 of the Act
[2] Section 276 of the Act
[3] Section 284(1) of the Act