Encore [2011] QBCCMCmr 59 (17 February 2011)

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

I hereby order that the body corporate for the Encore community titles scheme is authorised to spend an amount of up to $100,000 on any one project to rectify the flood damage to common property.

I hereby declare that an extraordinary general meeting of the body corporate convened for the purpose of considering matters arising as a result of the January 2011 floods, shall not be invalid because the requirement for 21 days notice in section 72 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 is not complied with, provided that the meeting is not held until at least 7 clear days after notice of the meeting is given to all lot owners.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the body corporate for Encore (the applicant), pursuant to a resolution passed outside a committee meeting on 10 February 2011. The applicant seeks the following orders:

That the body corporate be authorised to spend an amount of up to $100,000 on any one project to rectify the flood damage to the common areas of Encore

That the period of notice given to owners prior to a general meeting be reduced to 7 days for any flood related matters.

The applicant seeks authorisation to spend an amount of up to $100,000 in order to rectify flood damage. The applicant also seeks approval for the reduction of the regulated time for giving notice of a general meeting.

The scheme is situated in Campbell Street Toowong and consists of 4 buildings containing 75 units. As a result of flooding in January 2011, the scheme experienced significant damage to common property. The cost of effecting repairs will be well in excess of the relevant limit for committee spending, which, the applicant states, is $37,500.

Details of 3 quotes obtained for the purpose of rectifying the flood damage are as follows:

BrownBuilt Designer Homes $79,699
CamPak $84,986
Adenstar Construction $126,806.50

The committee has resolved to adopt the quote from BrownBuilt Designer Homes to repair the flood damaged common property.

I am advised that there are a number of additional matters that need to be considered by the body corporate in general meeting as a result of the flooding. For this reason, the applicant seeks an order that the period of notice given to owners prior to a general meeting be reduced to 7 days for any flood related matters.

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 Act applies if the commissioner reasonably considers an application should be immediately referred to a dispute resolution officer because it relates to emergency circumstances and it is not appropriate to deal with the application under section 247 Act which deals with interim orders. The commissioner may immediately refer the application to an adjudicator without giving written notice to affected persons pursuant to section 243(1)(c)Act.

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 157(1) Accommodation Module). The body corporate has demonstrated that since the flood, it has taken steps to assess the nature and cost of the damage and to draft a comprehensive plan to reinstate the common property.

On the basis of these submissions, I am satisfied that an emergency situation has arisen in the scheme.

Section 72 Accommodation Module requires that a general meeting must be held at least 21 days after notice of the meeting is given to all owners of lots. However, the objects of the Act include providing flexible and contemporary communally based arrangements for the use of land and recognise self management as an inherent aspect of community titles scheme (Act 2, 4). Courts have recognised that the very detailed provisions of the applicable regulations make it almost inevitable that there will be failures to comply with the regulations from time to time[1] and courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result.[2] In emergency circumstances, adjudicators have abridged the requirement of 21 days’ notice.[3] Such notice might also be shortened by unanimous agreement[4] of all owners which might occur, for example, where the ownership of all lots is held by one person.

I believe that all owners would be interested in having the flood damage attended to as soon as possible so that the scheme is habitable and functional. I am therefore of the view that the proposed meeting to consider these urgent issues will not be invalid simply because the usual requirement for 21 days notice of the meeting is not complied with. I consider that at least 7 clear days notice of a motion must be given to owners as a reasonable period in which to be informed of a motion and to be able to cast a vote. That is, there must be seven days’ notice excluding the day on which the notice is sent out and excluding the day on which the meeting is held.

[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.
[2] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at paragraph 97.
[3] Tennyson Reach 0038-2011
[4] Baggot & Anor –v- Whafflm Pty Ltd & Anor [2000] QSC 167

Number of Scheme:	30888
Name of Scheme:	Encore
Address of Scheme:	2 Campbell Street Toowong QLD 4066

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Encore [2011] QBCCMCmr 59 (17 February 2011)