Waterville [2011] QBCCMCmr 51 (15 February 2011)

Number of Scheme:	10825
Name of Scheme:	Waterville
Address of Scheme:	164 Macquarie Street, ST LUCIA QLD 4067

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

I hereby declare that the extraordinary general meeting of the body corporate scheduled for 1 March 2011 for the purpose of considering a motion/s to repair the lift and raise a special levy as necessary to fund any such works 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 has not been complied with.

The Waterville community titles scheme 10825 (Waterville) consists of 27 lots and common property. The community management statement (CMS) for Waterville indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by The Body Corporate for Waterville (the applicant) on 10 February 2011, pursuant to a resolution passed outside a committee meeting on 9 February 2011. The applicant has sought a declaratory order in the following terms:

An Order that the notice period for an Extraordinary Meeting be reduced from 21 days to 7 days in order to expedite emergency works to recommission the common property lift.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 243A of the Act provides that the Commissioner may refer an application immediately to a dispute resolution officer, notwithstanding that affected persons have not been given notice of the application and invited to make submissions as would normally be required under section 243(1). This referral can occur when the Commissioner reasonably considers that the application relates to emergency circumstances and it is not appropriate to deal with the application as an interim order under section 247.

The application seeks authorisation to reduce the regulated time for giving notice of a general meeting. The facts of the dispute can be summarised as follows:

The body corporate is situated on the river at St Lucia and sustained considerable damage during the recent Brisbane flooding, including damage to the common property lift.

On 7 February 2011, the committee called an Extraordinary General Meeting (EGM) to consider a motion to repair the lift (costing $71,090.00 plus GST) and raise an associated special levy contribution. The EGM is scheduled for 1 March 2011.

The application says that the works are urgent given that the scheme consists of a 10 storey building with only one lift and some of the residents are unable to use the stairs. Consequently, the committee requests that the notice period for the EGM be reduced so that the works can be considered at the EGM scheduled for 1 March 2011.

The body corporate has a duty to administer, manage and control common property and body corporate assets reasonably and for the benefit of lot owners. (Section 152(1) Act). It must maintain common property in good condition, including to the extent that common property is structural in nature, in a structurally sound condition. (Section 159(1) Standard Module). The body corporate has demonstrated that since the flood, it has taken steps to reinstate the common property. Further, as the scheme consists of a 10 storey building with only one lift which is currently inoperable, I am satisfied that an emergency situation has arisen in relation to the lift.

Section 74 of the Standard Module requires that a general meeting must be held at least 21 days after notice of the meeting is given to all owners. The 21 day notice requirement was considered by Adjudicator Rosemann in the matter of Moet[1]. There the Adjudicator stated:

“Section 74 of the Standard Module provides that a general meeting must be held ‘at least’ 21 days after notice of the meeting is given to the owners of lots. Section 70(1) provides that the notice must be given to each owner personally or sent to their address for service.

In calculating the 21 day period, section 38(1) of the Acts Interpretation Act 1954 indicates that the day of giving the notice and the day of the AGM are not to be taken into account – that is, there should be 21 clear days between the giving of the notice and the meeting. The effect is that for a meeting on 9 June, notice must have been given no later than 16 May.

Furthermore, if the notice of general meeting was sent by post then 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 (such as evidence showing that the item was not in fact delivered until later). Therefore notice is ‘given’ on the expected postal delivery date rather than the date it was actually posted. Standard delivery times differ depending on the destination and could be checked with Australia Post.”

Therefore, when calculating the 21 day notice period, it seems that both the day on which the notice is given and the day of the meeting must be excluded from the calculation of this period.[2] Further, it seems that time must also be allowed for the notice to be ‘given’ to owners in the ordinary course of post. Having regard to the published Australia Post service standards, letters posted to areas within Brisbane should arrive on the next business day, letters posted to Queensland country areas should arrive on the second business day, letters to interstate metropolitan areas should arrive on the second business day and letters posted to interstate country areas should arrive on the third business day. It therefore follows, that an additional two, if not three days (depending on owners’ address for service) should be given to any notice period.

In this instance, the EGM has been scheduled for 1 March 2011. Accordingly, 21 days ‘clear’ notice of the meeting would have required the notices to have been ‘given’ to owners by 7 February 2011. Taking into account ordinary postal timeframes, this means that the notices should have been posted by either 4 February 2011, or at the latest 5 February 2011, to ensure that the notices were ‘given’ to owners in time. As the notice in this case was posted on 7 February 2011, I am satisfied that a full 21 days notice of the meeting scheduled for 1 March 2011 cannot be given to owners.

Obviously the body corporate should in the future ensure that the full 21 days notice is given to owners, as outlined above. When in doubt notice should be given earlier rather than at the last minute. However in this instance, given the emergency circumstances associated with the lift repairs and the relatively small delay in the giving of the notice, I am not satisfied that it would be just and equitable to allow the meeting to be potentially invalidated on this basis. This conclusion is further supported by the matter of Chen v Body Corporate for Wishart Village CTS 19482[3] where His Honour Judge Boulton DCJ stated:

The very detailed provisions of the standard module regulation to which I have referred above make it almost inevitable that from time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.

Accordingly, I am ordering that the EGM scheduled for 1 March 2011 to consider these urgent issues will not be invalid simply because the usual requirement for 21 days notice of the meeting has not been complied with.

[1] Moet [2010] QBCCMCmr 496 (1 November 2010).
[2] This view is also supported by Casablanca Domes [2005] QBCCMCmr 59 (3 February 2005); Casablanca Domes [2005] QBCCMCmr 62 (4 February 2005).
[3] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Waterville [2011] QBCCMCmr 51 (15 February 2011)