24 Moray Street [2011] QBCCMCmr 53 (15 February 2011)

Last Updated: 18 March 2011

REFERENCE: 0712-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14497
Name of Scheme:	24 Moray Street
Address of Scheme:	24 Moray Street NEW FARM QLD 4005

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

Peter Hollis, the Owner of Lot 15

I hereby order as follows- That Motion 24 of the committee meeting held on 15th June 2010 was invalid for the reasons set out herein. In all other aspects the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0712-2010

“24 Moray Street” CTS 14497

APPLICATION

This is an application dated 23rd July 2010 but received at this Office on 26th July 2010 and amended on 27th July 2010 by Peter Hollis, (the Applicant) owner of Lot 15, against the body corporate for 24 Moray Street CTS 14497 (the body corporate) for orders as follows –

1. that the nominations for committee by K. London as chairperson, L. O’Brien as secretary and P. Accornero as ordinary member are invalid;
2. that Motion 26 of a committee meeting held on 15th June 2010 purporting to validate the nominations referred to in 1. above, is invalid;
3. that the body corporate manager re-issues papers for election of the committee showing the Applicant as the only valid nominee for chairperson, secretary, treasurer and ordinary member and set a time and place and issues appropriate papers for an adjourned annual general meeting for election of committee members;
4. that a committee meeting purportedly held on 12th May 2010 was not a valid committee meeting;
5. that Motion 24 of a committee meeting held on 15th June 2010 is invalid and cannot be acted upon;
6. that the committee has misinterpreted By-law 8 and that By-law 8 does not empower the committee to grant any approval in relation to clothes racks or other items on common property;
7. that the committee observes By-law 3;
8. that the Applicant’s out-of-pocket expenses including filing fees and reasonable costs of this application be met by the body corporate.
   

On 28th July 2010, I dismissed an application for two interim outcomes: one to postpone the committee election at the annual general meeting on 28th July 2010; and the other to restrain the committee from acting in accordance with Motion 24 of the committee meeting of 15th June 2010.

I am advised by the Applicant that in the intervening time between the interim order and this final order, the clothes-line on the balcony aspect of the application, that is in respect of outcomes sought 4, 5, 6 and 7, have now been resolved, “subject to publication of minutes etc.”, or are no longer of any consequence.

JURISDICTION

“24 Moray Street” CTS 14497 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module.) There are 21 lots in the scheme created under four Building Unit (Format) Plans of subdivision or re-subdivision.

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

(c) a claimed or anticipated contractual matter about-

(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)).

There is no power for an adjudicator to award costs or expenses, save to a respondent in the case where an application is dismissed for being frivolous, vexatious, misconceived or without substance (Section 270 Act). The application for an order for that the body corporate meets the Applicant’s out-of-pocket expenses including filing fees and reasonable costs of this application (outcome sought no.8) therefore cannot be considered.

SUBMISSIONS

Outcomes sought nos. 1, 2 and 3 - Committee nominations
The Applicant says that there was a committee meeting held on 15th June 2010 when, by Motion 26, the committee decided to accept three nominations for membership of the committee. These nominations had not been forwarded to the body corporate manager by the due date of the end of the financial year on 31st May 2010. The committee decided to accept the three nominations as valid. Kevin London (Mr London) was nominated as chairperson, Lesley O’Brien, (Mrs O’Brien) was nominated as secretary; and Peter Accornero (Mr Accornero) was nominated as an ordinary member.

The Applicant had nominated himself for all three executive positions and ordinary member, and had given his nomination to the body corporate manager by 31st May 2010. His was the only nomination received for treasurer.

The Applicant challenged the validity of Motion 26 by lodging a “notice of objection” dated 24th June 2010 with the body corporate. He noted that it was part of the body corporate manager’s contract that the body corporate manager should call for nominations of candidates and that the body corporate manager had done this, inviting nominations by 31st May 2010. The address of the body corporate manager was given as the address to which to return the nominations. He received an acknowledgement on 1st June 2010 from the body corporate manager that his nomination had been received.

In the “notice of objection”, he said that he understood that on 1st June 2010, the body corporate manager told Mrs O’Brien that he had received no other nominations. However, on 3rd June 2010, Mrs O’Brien deposited 7 nominations with the body corporate manager saying that she had forgotten to lodge them. The body corporate manager returned them all to her, refusing to accept them, and 4 persons of the 7 candidates then withdrew their nominations.

The Applicant says that the three nominations were not lodged in time and “probably not signed.”

He says that the committee meeting of 15th June 2010 cannot decide by Motion 26, that the nominations were valid when they were not.

Outcomes sought no. 4 and 5 - Validity of committee meeting on 12th May 2010 and subsequent motion to approve the minutes of invalid meeting
The Applicant says that there was no notice to owners about the committee meeting of 12th May 2010; that committee members did not seem to have had the requisite notice of the meeting of 12th May 2010; that the minutes (or report) of the meeting of 12th May 2010 were published outside the time required by legislation; and that the body corporate committee cannot subsequently validate an invalid meeting at a subsequent committee meeting, by agreeing to publish the report/minutes of that meeting, and/or add a motion purportedly forgotten from that meeting.

The committee had purportedly voted 6 – 1 at this meeting to allow the tenant of Lot 14 to keep a small hanger on the rear balcony common walkway. The Applicant says that on 12th May 2010 there were only 5 committee members present.

At the committee meeting on 15th June 2010, the committee decided at Motion 24, to publish revised minutes of a committee meeting of 12th May 2010, including the motion which was said to have been omitted by accident as follows –

“That the tenant of Lot 14 be permitted to have a small hanger on the rear balcony common walkway.”

In addition, the Applicant says that the body corporate does not have the right to allow anyone to obstruct common property, which is a safety issue.

Outcomes sought nos.6 and 7 – interpretation and observation of by-laws
The Applicant says that By-law 3 as recorded in the community management statement for the scheme says-

“ A proprietor or occupier of a lot is not to obstruct lawful use of common property by any person.”

By-law 8 prohibits hanging of washing on any part of the proprietor’s lot in such a way as to be visible from outside the building, except with the consent in writing of the body corporate.

The committee appears to have relied on By-law 8 to grant permission for a tenant to erect a clothes rack but that by-law does not give the body corporate committee the power to allow owners to hang things on common property. The obstruction of common property walkways can be a safety issue and the walkway is “partially obstructed” by the clothes rack.

Outcome sought no. 8 – costs
The Applicant sought costs on the basis that then body corporate made no attempt at all at conciliation of the matters in dispute, and that motions regarding the clothes racks and by-law 8 are “misconceived”, ”prejudicial to the Applicant” and “vexatious.”

In accordance with section 243(2)(b) Act, submissions were invited from all of the remaining 20 lot owners, and the body corporate manager Skehan Body Corporate Managers.

The body corporate provided a copy of the minutes of the annual general meeting held on 28th July 2010. The election of the committee was held and the result was that Mr London is chairperson with 16 votes, Mrs O’Brien is secretary with 15 votes, the Applicant is unopposed as treasurer, and ordinary members are Mr Accornero, Grant Cobbin, Jon Jowsie and Louise Luparia, the last three members being nominated from the floor of the meeting.

The body corporate manager prepared a submission in August 2010 and lodged it with this office on 25th October 2010. It advises that some issues have since been resolved.

In respect of the nominations, the body corporate manager says that the end of the financial year for the scheme is 31st May. Nomination notices were sent out on 28th April 2010. On 31st May 2010, the Applicant lodged his nomination for all executive positions and ordinary member on the committee at the body corporate manager’s office. He was told that there were no other nominations to date which was confirmed on the following day as well. The body corporate manager thereafter advised Mrs O’Brien that there were no other nominations for committee. Mr London then advised the body corporate manager that the nominations had been filled out at the committee’s meeting on 12th May 2010 and posted to the body corporate manager, and that the body corporate manager must have lost them, or alternatively they had been lost in the mail.

The body corporate manager sent the chairperson a generic copy of the nomination form by email and the following day, the secretary delivered a bundle of seven completed nomination forms to replace the ones lost in the post. The body corporate manager did not accept these nominations as they were on the file copy generic form and did not carry the number of each owner’s lot. He then decided to send out another 21 correctly printed forms relating to each owner. He did this on 9th June 2010 and also sent the 7 nominations back to the secretary. He instructed that replacement forms were to be accompanied by a letter certifying that the original forms had been lodged with the secretary prior to 31st May 2010 but subsequently lost in the mail.

The Applicant asked the body corporate manager to demand statutory declarations from each of the nominees as well as the secretary.

At the pre-AGM budget committee meeting held on 16th (sic) June 2010, he was handed three committee nominations with a letter from the secretary that they had been received by her before 31st May 2010. The other nominations were withdrawn according to the secretary. The secretary’s letter is dated 4th June 2010 but the body corporate manager thinks this should be “14th” June and is an error. The nomination for Peter Accornero was on correct stationary and looked to be on the original form sent out by the body corporate manager but then returned to the secretary without the body corporate manager having inspected it closely. It had therefore not been lost in the mail but whether or not it was delivered to the secretary prior to 31st May 2010 he does not know.

Grant and Jenny Cobbin, owners of Lot 21, say that in general the scheme is a happy community and the committee works diligently. The building underwent an upgrade in 2009 and the then chairperson Mr London oversaw the project competently. The Applicant appears to be an investor owner in a scheme full of owner-occupiers and has caused noise and disruption himself with his renovations. He is not interested in being part of the community even though he has nominated himself for the committee. The scheme does not intend to breach any regulations and is trying to comply with the law as it should.

Jon Jowsey, owner of Lot 10, says that he was present at the committee meeting on 15th June 2010. At this meeting the secretary asserted that she was in possession of the committee nominations for K. London, L.O’Brien and P. Accornero prior to the “cut off date”. She did not pass them on to the body corporate manager because in previous years, nominations have been given to the secretary and then passed to the body corporate manager at the annual general meeting. She may also have forgotten about them.

The voting at the annual general meeting shows that K.London and L.O’Brien gained a significant number of votes and they are clearly two people whom the body corporate wants on the committee. If there was a re-vote, he expects a similar result, so there would be no point.

On 25th August 2010, the committee passed a resolution to rescind the prior resolution that dealt with allowing clothes lines on common property. Owners were to be advised that no clothes lines were to be put on common property.

Mr Accornero does not support the application. He says that his mother owns the unit, but that he is her Attorney and is on the committee. He says that the scheme has proceeded amicably for 30 odd years until the Applicant bought into the scheme.

Louise Luparia, owner of Lot 13, says that she is saddened and stressed by recent events. She has lived at the scheme for 22 years and occasionally served on the committee. The Applicant has upset the harmonious nature of the scheme, and has caused the committee to have to spend much time on his concerns. She says that the former tenant of Lot 14 kept a similar washing line before the current tenant. She never found this to be a problem. It can easily be removed and is only there for short periods to catch the morning sun. Owners were always flexible and friendly and try to accommodate another occupier’s requirements.

On 25th October 2010, the Applicant updated his application alleging new information and facts. He was requested by this Office to distribute the further information to all lot owners.

He advised that Mrs O’Brien had resigned as secretary. The body corporate has passed a resolution revoking its previous resolution approving clothes racks on common balconies. He also said that the validity of the committee meeting of 12th May 2010 is “now of little consequence.”

In respect of the nominations, he says that the only address on the nomination form for the return of nominations was c/- Skehan Body Corporate Managers.

He is of the view that nominations received were backdated to 12th May and 13th May 2010 and are fraudulent. The signatures on the generic file forms showing “0” lot as the lot number, were not sent out until 2nd June 2010, so could not have been signed and dated prior to 31st May 2010. The only two possibly non-fraudulent nominations, that is, nominations on forms where the lot number of the nominee is printed, are from L. O’Brien nominating K. London as chairperson, and from P. Accornero as an ordinary member, but these were not received on time.

He says that secretary now says that she was not holding the nominations as at 31st May 2010, and that this was said at a committee meeting on 8th September 2010.

Owners were also invited to make submissions on this updated information.

Mr London, co-owner of Lot 12 and chairperson of the body corporate provides a copy of the ‘notice inviting nominations’ which itself was dated 31st May although requiring nominations before 31st May 2011. He says that the Applicant has a personal grudge against him dating back to renovations taking place in 2009. In respect of the nominations, he says that he and the secretary Mrs O’Brien on 12th May 2010 agreed to nominate for chairperson and secretary respectively and both completed the forms. He does not recall if she took them both, or if he gave them to her the next day, but she had them prior to 31st May 2010.

Laura London, co-owner of Lot 12, says that she is unsure what the Applicant wants from this application. It is very hard to get owners to act on the committee, and he is making life miserable for committee members. He does not live in the scheme. The issues are peppered with assumptions and innuendo. The committee is human and might make mistakes. She says that nominations were received by the secretary in due time. Mrs O’Brien is in her 70s and has now felt obliged to resign owing to the stress of the situation and the accusations against her.

Relma Laverty, owner of Lots 1 and 16 says that she does not really understand the application. She has lived in the scheme for over 40 years and occasionally served on the committee. She is happy with the committee and the way it carries out the business of the body corporate. The current members of the committee are under great stress from the continual demands and accusations of the Applicant. It is “stymie-ing” their role to act fairly and equitably for the rest of the lot owners. The question of the small clothes-airer was simply a question of common sense. They has never been an issue previously and she is surprised that it has become such a big issue now.

Mrs O’Brien, owner of Lot 9, says that she has lived in the scheme for 30 years and the scheme has always addressed problems and achieved successful outcomes. Prior to the Applicant’s arrival, it was a warm and friendly environment. In respect of the clothesline, she says that over the years, small portable lines have been erected on all seven balconies to dry clothes and no complaints about obstruction have ever been made.

In respect of the nominations she says that on 10th May 2010 she discussed the issue with the chairperson. Mr Accornero had already given her his completed nomination form. She and the chairperson completed their forms so she had three in her folder. Her fax machine was not working and her computer was disabled on 7th May 2010 by storm damage. The three forms remained in her folder until they were delivered to the body corporate manager after 31st May 2010.
The four replacement nomination forms which she had been given were also given to the body corporate manager “who found that they were not the correct forms.” He issued another replacement of nomination forms which ended up with the four owners withdrawing their nomination.

The body corporate made a submission through lawyers. It considers that the clothes-line issue is now resolved. It says that the meeting of 12th May 2010 was not a formal committee meeting but a meeting of committee members, and there was no notice of it. No resolutions were passed nor any binding decisions made. There is no need to declare this meeting invalid since it does not purport to be a valid meeting of the committee. In any event, that meeting discloses no relevant discussion about the clothes line.

The committee meeting of 15th June 2010 was properly convened and the issue about the clothes line was raised by Motion 24. The committee has now revoked that decision to approve the installation of the drying rack, and this issue is now obsolete.

The Applicant contends that nominations for the committee were invalid because they were not received by the body corporate manager by the closing date. Section 16 Standard Module relevantly provides that nominations must be given to the secretary by the end of the financial year. Mrs O’Brien, then the secretary had been given nominations by Mr London, and Mr Accornero, and herself. Delivery to the body corporate manager was not the only means of complying with section 16 Standard Module.

Section 97 Act says that the body corporate cannot delegate its powers, although section 119 Act allows a body corporate to engage a body corporate manager to exercise some or all of the powers of an executive member of the committee. The appointment must not prevent the executive member from exercising an authorised power. The receipt of the nominations is an administrative function which may validly be made to the secretary, and not the body corporate manager alone. The manager is simply the agent of the committee for appointed purposes.

The Applicant exercised his right of reply. He relevantly says that on 1st June 2010 he believes that there were no other nominations and that the existing committee had to raise a challenge to his four sole nominations and had decided at the unofficial meeting on 12th May 2010 to nominate from the floor at the AGM. Emails at the time evidence this as a proposed course of action. They then decided on a new strategy that other nomination forms had been signed and lost. “Standard” nomination forms were then re-sent by the body corporate manager and dated prior to 31st May 2010, except the form from Peter Accornero.

”Someone, most probably K. or L. London, had copied the copy (pro-forma) nomination form the body corporate manager had sent K. London, these were signed in early June but backdated to 12 May 2010 What the committee members did not realise was that the copy/pro-forma forms showed “Lot 0” and were not exactly as the original nomination forms posted out to all owners in February/March 2010, which have the relevant lot owner’s lot number on them.”

Since these pro-forma forms saying “Lot 0” were not the same as the original ones bearing lot numbers, they could not have been signed and dated before early June 2010. “They were clearly backdated and fraudulent”.

He believes that nominations had been taken from the floor as the practice in the scheme for many years, so that owners did not intend to return the filled in nomination forms at all. The secretary has subsequently admitted at a committee meeting that she was not holding any forms as at 31st May 2010. This admission has not been minuted in the minutes of that meeting on 8th September 2010. The body corporate has also offered no explanation about the “Lot 0” forms, and did not deal with the admissions made by Mrs O’Brien at the committee meting. “This silence should be taken as an acceptance of the matters set out” in the Applicant’s submissions.

He notes that when he asked the body corporate manager to get statutory declarations from the other nominees, that four nominees withdrew. The other two did not sign a statutory declaration. The body corporate submission does not deal with this.

DETERMINATION

The Applicant, the owner of Lot 15, and treasurer of the committee, seeks orders as to the validity of three nominations for committee which were made in anticipation of the annual general meeting held on 28th July 2010.

He also seeks an order that a resolution of the committee pursuant to Motion 26 of a committee meeting on 15th June 2010 is invalid. Motion 26 read –
“Committee Nominations Received

That the body corporate manager accept the “committee” nominations for Kevin London, Lesley O’Brien and Peter Accornero received by the committee secretary before the end of the financial year but not forwarded to the body corporate manager at the time.” This was carried 7 – 0.

He asks that the body corporate “re-issue election of committee papers” showing the Applicant as the only valid nominee for chairperson, secretary, treasurer and ordinary member and set a time and place and issue appropriate papers for an adjourned annual general meeting for election of committee members.

Section 16 Standard Module provides that nominations for committee are invited by the body corporate prior to an annual general meeting. The nominations must be given to the secretary by the end of the financial year, which in this scheme is 31st May. Owners must also be invited to submit motions for the annual general meeting at the same time. (Section 69(5) Standard Module).

It is not disputed that the body corporate manager sent out the “Notice Inviting Nominations” in the required period. The body corporate manager says that he sent them to all owners on 28th April 2010 although the copy of the notice sent to the Applicant is mysteriously dated 31st May 2010, the date by which the nomination had to be received. Other copies of notices in the application are dated 28th April 2010. If the notices were “posted out to all owners in February/March” as posited by the Applicant in his Reply, then they would not have been sent pursuant to section 16(3) Standard Module which requires that the notices are given “at least 3 weeks before and not earlier than 6 weeks before the end of the body corporate’s financial year.”

Mr Accornero signed his nomination form on 29th April 2010. It is not entirely clear from the application whether this fact is disputed by the Applicant. However, it does not matter because what the Applicant does dispute is that Mr Accornero’s form was given to the body corporate manager on or before 31st May.

The evidence about the nomination forms signed by Mr London nominating Mrs O’Brien as secretary, and by Mrs O’Brien nominating Mr London for chairperson is disputed.

Both forms are dated 12th May 2010. Mrs O’Brien, who was then secretary, says that she held all three nominations, including Mr Accornero’s, in a folder as from 12th May 2010 “until given to Skehans after the 31st May”. Copies of the two signed forms in respect of Mrs O’Brien and Mr London exist with the printed “owner’s lot number” on them. The point here is that the forms with the owner’s lot printed on them are either the “original” forms sent out by the body corporate manager on 28th April 2010, or a third set of forms sent out on, probably, 9th June 2010. The second set of forms sent by the body corporate manager did not have the owner’s lot number filled in and were “generic” forms with “Lot 0” on them.

The copies of the “owner’s lot number” signed forms in respect of Mr Accornero, Mrs O’Brien and Mr London are date-stamped “received” 16th June 2010 presumably by the body corporate manager. These copies are in the submission made by the body corporate manager. There is evidence that the body corporate manager by letter dated 28th February 2010 but crossed out and dated by hand “9th June 2010” wrote to the then secretary and enclosed “a fresh set” of nomination forms, also returning “the original forms you sent us.” In the letter, the body corporate manager explained that the nomination forms had not been filled out properly in that the number of the lot of the nominee had to be displayed on the nomination form, so that the signatory must sign on the correct form that displays the lot number for the lot that is nominating. He also explained that there could be only one nomination per lot. Finally, he said that he required a letter from the secretary saying that the nominations had been received by the secretary before the end of the financial year on 31st May 2010.

The body corporate manager therefore invited the secretary to duplicate any nominations received by her by 31st May 2010. Clearly, if the letter which served to send out the fresh forms was dated 9th June 2010, any duplicates were signed after 31st May 2010. At the committee meeting on 15th June 2010, the committee by 7 – 0 votes agreed to accept the nominations.

The secretary, on 16th June 2010 wrote to Mr London, Mr Accornero, and herself saying that valid nominations for the positions had been received by the secretary before 31st May 2010. The nomination of the Applicant was also accepted as a valid nomination for all executive positions and ordinary member by letter from the body corporate manager.

Mr London thought that the first set of forms might have been lost in the post. Mrs O’Brien says that the (first set of) nomination forms were not foremost in her mind at the time and the three signed forms stayed in her folder. The Applicant says that the forms finally submitted to the body corporate manager are “fraudulent”, it seems because they are obviously backdated. There is no suggestion that the signatories are not those of Mr Accornero, Mr London and Mrs O’Brien respectively. He says that the nomination forms were not previously used by owners and that the normal way of voting for committee was “from the floor” of the meeting. He doubts that any forms at all were signed prior to 31st May. The challenge to his sole nomination for all three executive positions was deliberately mounted after 31st May 2010, that is, he disputes that the forms were handed to the secretary before 31st May, even if she was the correct recipient.

I find that there was a muddle concerning these nomination forms and that the body corporate manager attempted to assist by getting everyone to start again, but at the same time telling the secretary to confirm that she had received the nominations before 31st May. This she did, and this was endorsed at the committee meeting on 15th June 2010. I find that the nominations in dispute were not received by the body corporate manager by 31st May 2010. However, I find nothing “fraudulent” in principle about replicating a form with the original date on which it was signed.

The body corporate manager is engaged by the body corporate to carry out administrative duties. Section 119(3) Act specifies that where a body corporate manager is engaged, the body corporate must not prevent an executive member of the committee from exercising an authorised power. That is, the executive members of the committee may still carry out their functions whether a body corporate manager is engaged or not. The body corporate secretary may for example, legally call meetings. It becomes, in practice, inconvenient for a secretary to act without the assistance of the manager when notices for a meeting require reference to paperwork held by the manager, but this is merely a physical obstacle. There is no legal requirement that the body corporate manager is involved in every meeting, for example.

I am of the view that the provision of the nomination forms by the manager was in the course of his engagement, but that there was no reason why the nomination forms should not have been returned to the secretary pursuant to the legislation, or to the body corporate manager’s office, at the implied direction of the secretary.

The nomination form carried an addressee as “To: 24 Moray Street CTS 14497, c/- Skehan Body Corporate Managers, P.O.Box, Chermside Centre Q 4032”. It is clear that the body corporate manager is merely acting as the postbox on behalf of the body corporate, as is normal industry practice.

There is certainly no justification for finding that a nomination returned to the secretary by the due date can be contrary to the legislation.

Whilst I note the concerns of the Applicant, he has failed to satisfy me that the three nominations were not given to the secretary Mrs O’Brien by 31st May 2010. Ms O’Brien says that she had the nominations in a folder as from 12th May 2010 and gave them to the body corporate manager after the 31st May.

The Applicant says that the body corporate submission was silent on the issue of the “Lot 0” forms and the secretary’s change of story which he says was made on 8th September 2010 at a committee meeting. I do not find that this means that the Applicant’s supposition that no forms were in fact signed prior to 31st May 2010 should be taken to be accepted by the body corporate. In Cox –v- Body Corporate For "Grand Pacific Resort"[2007] CCT KA001-07, Mr K D Dorney QC said :

“...in certain particular circumstances of a civil proceeding, which may well extend to an administrative inquiry, the decision-maker can rely upon what might be reasonably expected of persons by way of response to assertions made, particularly where directed against them personally. The problem about applying such a principle is that the circumstances in which the principle arises are infinitely variable. Generally, any specific analysis yields an adverse consequence only where the person fails to react in circumstances where there are no reasonably probable grounds not to be full and frank in any response.”

It seems to me that the body corporate and the three ‘disputed nominees’ have all made submissions simply setting out their stories and not affirming or denying every point made by the Applicant. It is for the Applicant to prove his case as in the normal course of civil proceedings. I am not satisfied that he has done so. I therefore dismiss the first outcome sought.

The decision by the committee to accept the nominations as properly made at the committee meeting of 15th June 2010 was therefore a reasonable decision of the committee, and I dismiss the second outcome sought.

It follows that there is no need to call another general meeting to elect a committee member other than the Applicant, and I therefore dismiss the third outcome sought.

I note that the validity of the committee of 12th May 2010 is now “of little consequence” to the Applicant. It seems that the body corporate acknowledges that this meeting was not a validly held committee meeting in any event. As such, there was no need to produce any record of what was discussed. It is only at properly convened committee meetings, or by decisions made outside properly convened committee meetings for example in emergency situations pursuant to section 54 Standard Module, or at general meetings, that valid resolutions of the body corporate can be carried. Members are of course entitled to get together and talk about anything they please, but any matter discussed cannot be decided, or acted upon, until it is a formally made decision of the body corporate by one of the three means mentioned above.

For completeness, I dismiss the fourth outcome sought.

The fifth outcome sought is for Motion 24 of the committee meeting of 15th June 2010 to be held invalid since it sought to publish minutes of the “committee meeting” held on 12th May 2010. Since the body corporate agrees that there was no committee meeting held on 12thMay 2010, but just a meeting of certain lot owners who were committee members, then if the body corporate wishes it might publish was what discussed at that meeting but they will not be “committee meeting minutes.”

The result, in respect of the approval of the “small hanger on the rear balcony common walkway” for Lot 14, is that no such approval was given, either at the informal meeting on 12th May 2010, or by the decision to include “the permission” in the “minutes” made on 15th June 2010.

I find that Motion 24 was therefore invalid to be an effective decision of the committee, in that it appears to be based on an error that a valid committee meeting had been held on 12th May 2010 and so order. However, I note that the body corporate has now rescinded the purported permission for the hanger to be maintained on the rear balcony common walkway.

The sixth outcome sought is a declaration in respect of by-law 8, which concerns the appearance of the building, and uses made of a lot. It does not refer to common property. By-law 3 refers to common property in as much as no occupier must obstruct “lawful use” of common property by any person.

There is no point in making orders that the body corporate must obey the law or comply with its community management statement. It is anyway obliged to do so. A failure to do so might result in an application to this Office after the required processes have been put in place and exhausted, for example, the complainant submitting the prescribed form to the committee, and the committee then having the reasonable belief that a by-law is being breached, so that a contravention notice detailing certain particulars is sent to the respondent,[1] and the respondent then fails to cease the contravention.

I dismiss outcomes sought 6 and 7 for this reason and note that the Applicant is also satisfied that the issue is no longer ”live” in any event.

It seems to be the view of the Applicant that the committee may not approve the erection on common property of any apparatus. This is not the case. The body corporate committee may approve certain “improvements” to common property, if the improvement is a minor improvement, does not detract from the appearance of a lot or the common property, and is not likely to breach the owner’s duties as an occupier. (Section 164(2) Standard Module). Other improvements may be authorised by the owners by ordinary resolution at a general meeting of the body corporate.

By-law 3 concerns the obstruction of lawful use of the common property. If any occupier erects any apparatus, in order for it to breach by-law 3, it must “obstruct” someone else’s lawful use. Whilst the point is now academic, it seems to me that there is slight evidence that the Applicant was in fact obstructed by the tenant of Lot 14’s clothesline. In a hand-written letter to the body corporate manager dated 29th April 2010, he sets out that there is, repetitively and ongoing, a chair, shoes and boots in the lift foyer area level 5; “clothes drying racks(2) and clothes in lift foyer area and common walkway, entry, fire escape areas – Level 5”. He writes again on 25th May 2010 that the clothes and drying rack of unit 14 was still in the lift foyer, but that one rack and the clothes and shoes had been removed. However, there was a pushbike there and the front wheel “was blocking the passage way.” In a “notice of objection” written to the committee on 25th June 2010, the Applicant said that he had to pass the main entry in order to get to Lot 15 and that the clothes rack was “in view” and ”partially obstructing the walkway.”

Certainly the clothes and shoes might have looked unsightly or untidy, perhaps falling foul of By-law 7 (Depositing rubbish etc, on common property) and the bicycle might be controlled by By-law 2 (vehicles).

If the body corporate wishes to amend its by-laws, with the exception of exclusive use by-laws which require a resolution without dissent, it can only do so by a special resolution at a general meeting.[2]

The role of the body corporate manager is to give guidance to the committee in the area of his/her expertise and to take his/her instructions from the committee or from a delegated spokesperson on the committee with the committee’s approval. The committee should be using the expertise of the body corporate manager but not leaving him/her to issue contravention notices or write correspondence, for example, without the committee’s express prior approval.

Finally, in dismissing the greater part of this application, I advise the Applicant that I am of the view that this application fell just short of being vexatious and without substance, such that its dismissal might trigger consideration of the costs of the respondent body corporate pursuant to section 270(3)(a) Act. The Applicant’s case was presented in a voluminous and almost indecipherable application with innumerable references to grievances which are not part of this application, and founded on supposition, hearsay and open dislike of other members of the scheme. There is a large amount of completely irrelevant and vituperative material which took time to read.

In any future application made by the Applicant, with respect to the issue of costs against an applicant, an adjudicator may have regard to previous applications made by that applicant. (Section 270(3)(b) Act.)

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[1] Section 182(1) Act
[2] Section 62(3) Act