Evolution Apartments [2011] QBCCMCmr 269 (27 June 2011)

Last Updated: 19 July 2011

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

CITATION:	Evolution Apartments [2011] QBCCMCmr 269
PARTIES:	Norman Coles, owner of Lot 325 (applicant) The Body Corporate for Evolution Apartments (respondent)
SCHEME:	Evolution Apartments CTS 38033 (Evolution Apartments)
JURISDICTION:	Sections 227 and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (the Act), applying the Act and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).
APPLICATION NO:	1054-2010
DECISION DATE:	27 June 2011
DECISION OF:	S Zeidler, Adjudicator
CATCHWORDS:	COMMITTEE MEETING – whether the committee meeting agenda sets out the ‘substance of issues’ to be considered at the meeting – whether sufficient notice of the committee meeting was provided to all owners and committee members. Accommodation Module, ss45, 47

ORDERS MADE:

I hereby order that the application is dismissed.

REASONS FOR DECISION
Introduction

_[1] This application relates to the validity of the committee meeting dated 17 November 2010. The applicant disputes the validity of this committee meeting on two main grounds.

• Firstly, the applicant argues that the committee meeting agenda does not set out the ‘substance of issues’ to be considered at the meeting pursuant to section 47 of the Accommodation Module.
• Secondly, the applicant argues that insufficient notice of the committee meeting was provided to owners and committee members in contravention of section 45 of the Accommodation Module.
  

_[2] In determining this application I will have regard to sections 45 and 47 of the Accommodation Module and any relevant arguments submitted.

Application

_[3] This application was made by Norman Coles, owner of Lot 325, (the applicant) on 15 November 2010. The applicant sought orders against the Body Corporate for Evolution Apartments (the respondent) in the following terms:

That the Adjudicator finds that, in respect of the committee meeting held on the 17th November 2010, the body corporate did not meet its obligations to all lot owners (excepting those electing not to receive such advice) in that it did not provide a notice(s) of and agenda for this meeting which gives the substance of all issues to be considered at the meeting.

Jurisdiction

_[4] 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 Community Management Statement (CMS); or the exercise of rights or powers, or the performance of duties, under the Act or the CMS.[1] 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.[2]
_[5] I am satisfied that this matter falls within the legislative dispute resolution provisions.[3]

Procedural Matters

_[6] 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 made in this matter. The applicant inspected the submissions received and made a written reply.[4] A dispute resolution recommendation was then made referring the dispute to departmental adjudication.
_[7] The application also sought an interim order postponing the committee meeting dated 17 November 2010. On 17 November 2010 I dismissed the interim order application.

Submissions

_[8] Submissions were received from Ian Miles, Ken and Suzanne Steffensen and Ken Rae opposing the application. Included in the submission of Ken Rae was letters of support for his submission from Roger Bacon, Brendan O’Brien, Sean Sample, Stephen and Jackie Brown, Dean Calletti, Priscilla Eacott and Adrian Ferguson.
_[9] Further, a submission was received from Steve Hoare supporting the application. This submission stated that the level of ‘information disclosure’ under the current committee had fallen away quite significantly.
_[10] A submission was also received from Giordano and Veronica Zanardi concerning allegations of smoking within their lot. I do not consider this submission to be relevant to the issues requiring determination in this matter.

Investigation

_[11] Pursuant to the investigative powers of an adjudicator in section 271 of the Act, on 15 November 2010 I requested that a member of our Office contact the Body Corporate Manager and enquire whether the notice of the committee meeting had been distributed to all lot owners. A file note of the conversation confirms that the notice of the committee meeting had been sent to all owners on 10 November 2010.

Analysis

_[12] The main issue for consideration in this matter is the validity of the committee meeting dated 17 November 2010.

Section 47 of the Accommodation Module

_[13] The applicant argues that the committee meeting agenda does not set out the ‘substance of issues’ to be considered at the meeting pursuant to section 47 of the Accommodation Module. The applicant raises three main issues in this regard.

‘Confirmation of Minutes’

_[14] Firstly, the applicant raises concern with the heading “CONFIRMATION OF MINUTES” as contained in the meeting agenda. The applicant says that this heading does not set out the ‘substance’ of a motion to confirm either the minutes of the preceding committee meeting (dated 8 September 2010) or the resolution passed outside a committee meeting (dated 29 September 2010) as required under section 47(3) of the Accommodation Module.
_[15] In response, the body corporate says that the heading ‘confirmation of minutes’ clearly sets out the ‘substance’ of what is to be discussed - namely the confirmation of minutes from all previous meetings.
_[16] Section 47(3) of the Accommodation Module says that a committee meeting agenda must include the substance of a motion to confirm any previous committee meeting minutes or resolutions passed outside a committee meeting. The phrase the ‘substance of a motion’ is not defined in the legislation. However, it seems that the object of section 47 is to ensure the agenda of committee meetings contains adequate detail to inform owners of the key issues being discussed at that meeting.[5]
_[17] In this instance, I am satisfied that the heading ‘confirmation of minutes’ sets out the substance of the motion/s to be considered under this agenda item. Specifically, whether or not to confirm the minutes of the previous committee meeting or resolutions passed outside a committee meeting. Accordingly, I am not satisfied that the agenda is invalid or deficient on this basis.

Motions submitted by the Applicant

_[18] Secondly, the applicant argues that the agenda does not sufficiently set out the ‘substance’ of the four motions he submitted for the committee’s consideration. Rather, the applicant says that the full wording of each of the motions as well as the explanatory notes should have been distributed to all owners as part of the meeting agenda.
_[19] Section 47(1) of the Accommodation Module says that the notice of a committee meeting must include an agenda setting out the ‘substance of issues’ to be considered at the meeting. I am not satisfied there is any legislative basis to suggest this phrase requires the full wording of, and the explanatory notes for, each of the motions to be distributed to all owners as part of the meeting agenda. This conclusion is supported by the matter of Parkwood Villas[6] where the Adjudicator stated:

“The secretary or other committee member may call a committee meeting[7] by giving written notice[8]. The notice must include an agenda “...stating the substance of issues to be considered at the meeting.”[9] It is noteworthy that this wording of this section refers to ‘issues’ rather than ‘motions’. Moreover the section clearly provides that the committee may consider other issues raised at the meeting and so it seems clear that the agenda is a guide rather than a prescription. Having regard to the legislative provisions I am not satisfied that there is any obligation on the Body Corporate to list every issue raised by an owner in its entirety in the agenda or the minutes, although of course it may be desirable to do so.”

_[20] The applicant’s motions were presented in the meeting agenda as follows:

• “Engagement of a body corporate manager motion proposed by Dr Norman W Coles”;
• “Term of contract for Body Corporate Manager motion proposed by Dr Norman W Coles”;
• “Advice of Proposed Committee Meetings motion proposed by Dr Norman W Coles”; and
• “Body Corporate Notice Board motion proposed by Dr Norman W Coles”.
  

_[21] After considering the wording of the motions compared with that submitted in the agenda, I am satisfied that the headings listed sufficiently set out the ‘substance of the issues’ to be considered at the meeting.

‘Report from Building Manager’ and ‘Correspondence’

_[22] Thirdly, the applicant raises concern with the headings “REPORT FROM BUILDING MANAGER” and “CORRESPONDENCE” as used in the meeting agenda. The applicant says that these headings do not state or give any indication of the ‘substance’ of the issues to be considered at the meeting. Further, the applicant likens this matter to that of Coronation Gardens[10] (Coronation Gardens) and says that the headings are insufficient as they could be placed on every meeting agenda produced.
_[23] In Coronation Gardens, four consecutive committee meetings contained identical agendas consisting of 6 broad headings – “Confirmation of the minutes of the previous meeting; managers report; business arising from previous meeting; financial statements; correspondence – Inward and Outward; and general business”. There the Adjudicator found that the agendas did not comply with the equivalent of section 47 of the Accommodation Module as they did not set out the substance of the issues to be discussed at the meeting.
_[24] I am of the opinion that the present matter is distinguishable from that of Coronation Gardens as the current agenda contains more than 6 broad headings, sets out the substance of particular motions to be considered and identifies issues which are specific to this meeting. In fact, the agenda in question contains 7 overarching headings and then 19 specific agenda items within these headings.
_[25] While it may have been prudent for the body corporate to include additional information under the headings ‘Report from Building Manager’ and ‘Correspondence’, I am not satisfied that section 47 requires every piece of correspondence to be listed or every item of business to be set out. Rather, the committee can consider other issues raised at the meeting that are not included on the agenda.[11] However, I am of the opinion that any ‘key issues’ to be discussed at the meeting should be included on the agenda. No owner in their submission has suggested that any ‘key issues’ (not listed on the agenda) were addressed under the headings ‘Report from Building Manager’ and/or ‘Correspondence’. Further, no owners have stated that they would have attended the committee meeting had these two headings contained additional information.
_[26] On balance, after considering the information provided, I am not satisfied that these two headings in the context of 7 overarching headings and 19 specific agenda items, are such that they cause the entire agenda to fall short of the requirements of section 47 of the Accommodation Module.
_[27] However, even if I am incorrect in this finding, I am of the opinion that any non-compliance with section 47 was of an insubstantial nature and caused no real prejudice to any party. Accordingly, I am not satisfied that the meeting agenda should be declared invalid on this basis.[12]

Section 45 of the Accommodation Module

_[28] The applicant raises a number of arguments regarding the validity of the committee meeting in light of section 45 of the Accommodation Module. I will address the key issues below.

Timely Information

_[29] Firstly, the applicant argues that the committee breached section 45 of the Accommodation Module by failing to give voting committee members and owners timely information regarding the upcoming committee meeting.
_[30] In response to this issue, the committee says that notice of the committee meeting was emailed to all committee members on 9 November 2010 and then distributed to all lot owners on 10 November 2010.[13]
_[31] Section 45(2) of the Accommodation Module says that written notice of the committee meeting must be given to all committee members at least 7 days before the meeting.[14] Further, section 45(4) of the Accommodation Module says that ‘advice’ of the committee meeting must be given to each lot owner when ‘notice’ of the meeting is given to committee members.[15]
_[32] In this instance, it seems that advice of the committee meeting was not given to each owner at the same time as notice of the meeting was given to committee members. Rather, it seems that advice of the committee meeting was given to owners one day after notice of the meeting was given to committee members.
_[33] Obviously it is preferable that advice of committee meetings be given within the prescribed time frame. However, the courts have recognised that the very detailed provisions of the regulations make it almost inevitable that from time to time there will be non-compliance with the legislation. In particular the courts have commented that non-compliance of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken in good faith.[16]
_[34] In this instance, advice of the committee meeting was distributed only one day late. Moreover, no evidence has been presented to suggest that any owner suffered detriment from this error. Accordingly, I am not satisfied it is appropriate to declare the committee meeting dated 17 November 2010 invalid on this basis.

Notice Board

_[35] Secondly, the applicant argues that the committee breached section 45 of the Accommodation Module by omitting to place advice of the committee meeting on the body corporate notice board.
_[36] In reply, the body corporate says that there are two notice boards within the scheme – a locked notice board located in the foyer and an unlocked standard notice board on level 6. The body corporate says they were unable to access the notice board (in the foyer) as the notice board was locked and the applicant holds the only key. However, despite this, on 10 November 2010 the body corporate says that the meeting notice was placed on the outside of the glass of the notice board. In addition, the body corporate says that they placed a copy of the meeting notice on the level 6 notice board.
_[37] Section 45(3) of the Accommodation Module provides that advice of a proposed committee meeting must be placed on the body corporate notice board (if the body corporate maintains a notice board). The onus is on the applicant to provide evidence to support any outcomes sought or claims made. The applicant has provided no evidence to support his assertions that advice of the committee meeting was not placed on the body corporate notice board. Accordingly, I am not satisfied that the applicant has demonstrated a breach of the legislation in this instance.

Distribution of Committee Meeting Notices

_[38] Thirdly, the applicant argues that the committee breached section 45 of the Accommodation Module by distributing a second, more detailed version of the meeting agenda only to committee members. In this regard, the applicant says the agendas sent to committee members should not be different from the agendas sent to lot owners. Moreover, the applicant argues that he only received a copy of the second agenda at the meeting itself.
_[39] In response, the committee says that notice of the meeting was distributed to all owners. However, the committee says prior to the meeting, additional supporting information was sent to committee members to enable them to make informed decisions at the meeting.
_[40] As set out above, I am satisfied that the body corporate distributed advice of the committee meeting to all owners. However, it seems that the body corporate then prepared a second, more detailed notice for committee members, and distributed this notice to them. There is nothing in the legislation which prohibits further information being distributed to committee members. Moreover, the legislation does not provide time limits within which any additional information must be distributed. Consequently, I am not satisfied that the applicant has demonstrated any contravention of the legislation regarding this issue.

Costs

_[41] The opposing submissions have requested a costs order against the applicant. Section 270(3) of the Act provides that if an application is dismissed for being frivolous, vexatious, misconceived or without substance; an adjudicator may award costs incurred by the respondent in defending the application.
_[42] In this instance I have not dismissed the application for being frivolous, vexatious, misconceived or without substance. Accordingly, I am not satisfied I have any jurisdiction to award costs in respect of this application.[17]

Conclusion

_[43] After considering the information presented, I am not satisfied that the committee meeting dated 17 November 2010 in invalid. On this basis, I am dismissing the application.

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[1] Section 276 of the Act
[2] Section 284(1) of the Act
[3] See sections 227, 228, 276 and Schedule 5 of the Act
[4] See sections 246 and 244 of the Act respectively.
[5] Parkwood Villas [2010] QBCCMCmr 521 (23 November 2010).
[6] [2010] QBCCMCmr 521 (23 November 2010).
[7] Section 44 of the Accommodation Module
[8] Section 45 of the Accommodation Module
[9] Section 47 of the Accommodation Module
[10] [2007] QBCCMCmr 353 (8 June 2007).
[11] Section 47(2) of the Accommodation Module.
[12] In Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482 Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (Unreported), Boulton DCJ, commented that non-compliance with the legislation of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken in good faith.
[13] See the ‘Investigation’ section of this ‘Reasons for Decision’ for more information regarding the distribution of the committee meeting notice to all lot owners.
[14] An exception to this provision occurs if at least two days before the meeting, all voting committee members vote, or agree in writing, to reduce the notice period.
[15] An exception to this provision occurs if a lot owner has instructed the committee that they do not wish to be given advice of the committee meeting.

[16] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (Unreported).
[17] See McGill DCJ in Woodrange Pty Ltd v Le Grande Broadwater Body Corporate [2004] QDC 215.