Gando Gardens [2011] QBCCMCmr 43 (9 February 2011)

Last Updated: 18 March 2011

REFERENCE: 1038-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20378
Name of Scheme:	Gando Gardens
Address of Scheme:	8 Nangando Street CAPALABA QLD 4157

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Annette Luck, the Owner(s) of lot 4

I hereby declare that the purported general meeting of the body corporate for Gando Gardens held on 25 October 2010 is, and was at all times, void. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1038-2010

“Gando Gardens” CTS 20378

Introduction

Gando Gardens is a nine lot community titles scheme located in Brisbane. All owners are members of the body corporate that is responsible for maintaining the common property and performing various other functions. Legislative requirements for this body corporate are set out in Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

The owners who are the members of this body corporate are required to elect a committee that is responsible for the day to day management of the scheme. Owners also have the option of appointing a body corporate manager to provide this committee with administrative assistance.

This dispute results from a number of owners deciding they did not want to continue to pay a body corporate manager. These owners purported to hold a meeting on 25 October 2010 at which owners voted on various matters, including on whether to manage the body corporate themselves rather than engage a body corporate manager. However, Annette Luck, the owner of lot 4, says this meeting was not valid as there was no proper notice of the meeting and no proper voting papers were issued.

Analysis

The provisions of the Standard Module related to the holding of meetings enable a meeting to proceed in an orderly fashion so as to ascertain the will of owners on each proposal but, as with the traditional rules of meeting procedure, do not appear to be intended as a series of mandatory rules that invalidate all of the proceedings of the meeting if one essential step is not followed.[1] The courts have commented that non-compliance with the regulations that is of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees.[2] However, the procedures adopted in the attempted calling of the meeting of 25 October 2010 appear to have been completely inadequate. This is particularly as no proper notice of the meeting was given and owners were not provided with a voting paper that would have allowed them to exercise their vote without attending the meeting in person.

A submission on behalf of the body corporate committee concedes that the meeting of 25 October 2010 was not properly called. A replacement meeting was therefore held on 20 December 2010 and the minutes of this meeting indicate that owners did have a proper opportunity to exercise their vote at this meeting.
I am satisfied that I should make the order requested by Ms Luck that the purported meeting of 25 October 2010 be declared void. It is not practical or appropriate in the circumstances to make the more general orders sought that would require general compliance with the legislation or mandate generally improved communication within the scheme. However, hopefully the signs of improvement in communications between the committee and non-resident owners will continue.
Conclusion

The purported meeting of 25 October 2010 was invalid due to inadequate notice and the failure to give non-resident owners a proper opportunity to express their vote.

It does seem that subsequent improvements in communication and compliance with the legislation have been made. If owners or occupiers want any general information about the legislative requirements applicable to their community titles scheme then I would encourage them to contact the Office of the Commissioner for Body Corporate and Community Management on 1800 060 119.

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[1] Refer Johnson v Beitseen (1989) 41 IR 395 at 415.
[2] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.