Cathedral Place 'Duhig' [2011] QBCCMCmr 6 (6 January 2011)

Last Updated: 21 February 2011

REFERENCE: 0959-2010

ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Plan:	Cathedral Place ‘Duhig’
Address of Building or Parcel:	41 Gotha Street, Fortitude Valley Qld 4006

TAKE NOTICE that pursuant to an application made under section 77(1) of the Building Units and Group Titles Act 1980 by Randall Edwards, a co-owner of lot 47

I hereby order that the application for the following orders: That for a valid Extraordinary General Meeting to be held, the Notice of that meeting must contain all of the motions listed on the agenda and that the voting paper must also contain all of the motions listed on the agenda, and that all of the above must be sent out with the Notice of Meeting and served on owners at least 7 days prior to the meeting. That should the omission of motions and the omission of those motions from the voting paper occur, a new Notice must be sent and served on owners at least 7 days prior to the meeting being called. That if a General Meeting of Cathedral Place “F” Duhig 106965 called for the 21st October 2010 is held, it be ruled invalid because the Notice of meeting did not contain all of the motions listed on the agenda nor did it contain a voting paper with all of the motions listed on the agenda. Is dismissed.

STATEMENT OF REFEREE’S REASONS FOR DECISION - 0959-2010

“Cathedral Place ‘Duhig’” CTS 0

Application

This application is by Randall Edwards (the Applicant), a co-owner of lot 47, seeking the following final orders:

1. That for a valid Extraordinary General Meeting to be held, the Notice of that meeting must contain all of the motions listed on the agenda and that the voting paper must also contain all of the motions listed on the agenda, and that all of the above must be sent out with the Notice of Meeting and served on owners at least 7 days prior to the meeting.
2. That should the omission of motions and the omission of those motions from the voting paper occur, a new Notice must be sent and served on owners at least 7 days prior to the meeting being called.
3. That if a General Meeting of Cathedral Place “F” Duhig 106965 called for the 21st October 2010 is held, it be ruled invalid because the Notice of meeting did not contain all of the motions listed on the agenda nor did it contain a voting paper with all of the motions listed on the agenda.
   

The Applicant also sought an interim order in the following terms:

That an order be made that the Chairperson rule out of order any Extraordinary General Meeting of Cathedral Place “F” Duhig 106965 held on the 21stof October (and/or adjourned on such) because the meeting was not called according to the legislative requirements.

On 21 October 2010, I dismissed the application for an interim order.

As stated in my reasons for the interim decision, the Applicant provided the following information by way of background:

• On Monday, 11 October 2010, the Committee of Cathedral Place “F” Duhig 106965 met and agreed to call an Extraordinary General Meeting to consider a motion put from the Cathedral Place Community Body Corporate Committee regarding the Deed of Settlement with Symland Pty Ltd.
• Upon receipt of the Notice of the EGM dated 12 October 2010, on 15 October 2010, the Applicant noted that motions put forward by Mr Brian Fisher, an owner, were listed on the agenda but were not included on the voting paper nor were they listed anywhere else in the papers sent out. The Applicant immediately emailed Grant Mifsud (Body Corporate Manager) and Peter Zunker (Chairperson and Secretary) making mention of the errors and suggested that if other owners did not receive the motions, then a new Notice must be sent and the meeting rescheduled. Copies of various emails between the Applicant and Mr Zunker were attached.
• It became obvious to the Applicant from the email correspondence that Mr Zunker, as Chairperson, intended to continue with the meeting and he instructed Mr Mifsud to send out the missing motions to owners.
• Even if the missing motions were sent out on 15 October 2010 (the day the instructions were given), owners would not receive them prior to 18 October 2010, just 3 days prior to the scheduled EGM. Those owners who need to post their voting papers would then be forced to make a decision within 2 days (assuming they live within 1 day’s postal delivery of Brisbane) to consider, gather information, vote and post their voting paper. Moreover, it is likely that some owners will have already posted their voting paper prior to the receipt of the additional motions.
• The motion which triggered the calling of the EGM by the Committee is to sign a Deed of Settlement with Symland (see Notice of Meeting papers) which will cost the complex in excess of $250,000 and Duhig’s share of that is over $40,000. At least one of Mr Fisher’s motions which were submitted to the Secretary in August 2010 is an alternative to the motion for the Deed of Settlement and costs nothing to owners. In fairness, Mr Fisher’s motions deserve to be considered with the same amount of time as required by the legislation.
  

As stated in my reasons for the interim decision, the Applicant then provided the following grounds:

• Part 2, section 1(4) of Schedule 2 of BUGTA requires a Notice of General Meeting to be served on owners at least 7 days prior to the meeting. It also requires that such notices set forth the business and indicate the classification of each motion (1(4)(d)). The calling of a general meeting without both the motions and their classifications does not comply with the legislation.
• BUGTA does not provide for sending out motions and new voting papers after a Notice has been sent out. Thus, if errors have been made in the original notice, a new notice with all of the motions and the appropriate voting paper must be sent in order to give owners sufficient time to receive, enquire and vote on all of the agenda items.
• Duhig is part of a scheme under the MUD Act and as such appoints a representative to the CPCBC to vote on behalf of Duhig Body Corporate. This body has been in conflict with Symland Pty Ltd for the past 6 months and has been seeking to terminate the contract with such. At a recent mediation, Symland offered to walk away from the contract if paid approximately $250,000. Owners would then have to employ others to provide the caretaking services presently provided by Symland. This would mean that owners would be paying double for caretaking services for at least the equivalent of the next 4 – 5 months. The representative for Duhig is also the chairperson and secretary of Duhig and wants the owners to instruct him as to how to vote in relation to the Deed of Settlement. However, little information has been given to owners, and even the motion to sign the Deed of Settlement does not, in itself, explain the cost of this decision. An alternative motion, put forward by Mr Fisher, proposes that the Duhig representative not vote to terminate the contract, but this motion was omitted from the original Notice.
• The issue is made more complex by the fact that Mr Zunker, the Duhig representative, is the son of Mr & Mrs E Zunker, who previously held the caretaking contract, but were not re-appointed after an extensive tendering process in which an independent reviewer did not recommend them. Mr Zunker is, in fact, employed in some form by his parents. It is possible that his family would seek re-appointment if the Deed of Settlement is approved, but owners are not aware of this conflict of interest. Thus, it is critical that any meeting held provides ample time for owners to read and consider alternative motions which were put forward, but not provided with the Notice.
• According to an email received on 18 October 2010, it would appear that Mr Zunker’s intention is to hold the meeting on 21st October, request that the meeting be adjourned for 1 week, then re-call the meeting to consider the motions. While this may provide time for owners to consider the motions, some may have already submitted their voting papers (many owners live outside the Brisbane metropolitan area) and, there is no guarantee that Mr Zunker will, in fact, do as he says. He could just as easily continue with the meeting if a quorum is present and rule motions passed or failed accordingly. For this reason, an interim order is essential for the preservation of all owners’ interests in this matter.
  

Jurisdiction

The Cathedral Place Community Body Corporate (CPCBC) is created by virtue of the Mixed Use Development Act 1993 (MUD Act) (s167(1)). The bodies corporate created by the registration of a group titles plan or building units plan subdividing a community development lot or a community stratum lot becomes a member of the CPCBC (s167(6), MUD Act).

The current members of the CPCBC are: Oxford and Cambridge body corporate; Notre Dame body corporate; Canterbury and Westminster body corporate; Kensington and Sandringham body corporate; Duhig body corporate; and Cathedral Village body corporate. A member of the CPCBC may appoint a person to represent the member (s169(1), MUD Act).

The Building Units and Group Titles Act 1980 (BUGT Act) applies for the operation of the MUD Act (s5A, BUGT Act). Section 214A of the MUD Act provides that “Unless otherwise provided in this Act, a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5”.

Part 5 of the BUGT Act concerns disputes. Part 5, division 3 makes provision for orders by a referee. Within division 3, section 77 provides general powers of a referee to make orders. Relevantly, section 77(1) provides a general power for a referee, on application of a proprietor, to make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel. An order made may include such ancillary or consequential provisions as the referee thinks fit (s73(1)(f), BUGT Act).

The Applicant is a member of the Duhig Body Corporate and is therefore entitled to make an application under section 77(1), against the chairperson and/or the Duhig Body Corporate.

Investigation

A referee may make investigations with respect to the application as the referee thinks fit (s.73(1)(f), BUGTA).

Submissions

Pursuant to section 73 of BUGTA, submissions were sought from all owners (excluding the Applicant), in response to the final orders sought.

On 2 November 2010, a copy of the application was provided to Peter Zunker for distribution to all owners of lots included in the scheme (excluding the applicants).

In addition to the submission made in response to the application for the interim order which is repeated below for the sake of completeness, a further submission from the Owner of Lot 46 was received, supporting the application. The owner stated that Notices received by owners from the body corporate are always written in a legalistic way with little supporting explanation in easily understandable form and with little or no explanation of reasons/alternative options and comparative costs/benefits. The owner also stated that it was of some concern that there is a possible conflict of interest for the Duhig representative on the body corporate concerning the caretaking contract. The Owner of Lot 46 believes that it is important that rules for proper notice and form of meetings be strictly observed. The Owner further states that the resolutions in question concern a cost to owners of $250,000, which is substantial. It is not clear why such a cost should be incurred, why it is necessary to do so now and the consequences of not incurring such a cost at this time, she further states. She hopes that any new meeting will explain the available courses of action and the likely changes and outcomes more clearly.

Peter Zunker, Chairperson of the Duhig Body Corporate made submission in response to the application for the interim order, to the following effect:

• This situation has arisen due to an unintentional error in the printing of the Notice of Meeting. In an email dated 18 October 2010 from Grant Mifsud, Mr Mifsud states that Archers Body Corporate Management accepts full responsibility for the error and issued the amended Notice of Meeting at no additional cost to the Body Corporate.
• Nothing under the BUGTA allows either the Chairperson or Secretary the ability to rule meetings invalid nor to call a meeting nor change the date of a meeting that has been called. The only power that a Chairperson has is to rule motions out of order under Part 2 Schedule 2 section 4. Neither the Chairperson, Secretary nor Body Corporate Manager has the power to change the dates of general meetings.
• The primary purpose for calling the general meeting of Duhig Body Corporate was in order to instruct the representative for Duhig as to the wishes of Duhig lotholders in respect of the motion put forward in the Committee Meeting held on 11 November 2010.
• All other residential bodies corporate of Cathedral Place have called general meetings on the same date, 21st October 2010, to vote on the same motion to give their representatives guidance in this matter at the community body corporate.
• Duhig body corporate does not have any control over the date of the Community Body Corporate meeting which has been set for 25th October 2010. The other date which Duhig Body Corporate has no control over is the date for termination of Symland in the deed of settlement, which is 4 November 2010.
• Should it be determined that an adjourned meeting would be invalid, then a further general meeting of Duhig held after the Community Body Corporate votes to decide the motion, would result in Duhig lot holders not participating in the decision. Holding a general meeting of Duhig will have no impact on the outcome at the Community Body Corporate.
• Mr Fisher’s motions were submitted some time prior to the Committee meeting of the 11 October 2010 with the expectation that they would be dealt with as and when a general meeting of Duhig was called. Mr Zunker fails to understand how Mr Fisher’s motions effect the voting on the motion submitted by the Committee, as it requires a yes or not vote.
• In an email dated 18 October 2010, Mr Zunker outlines how he proposes to deal with the situation as follows:
  • If the 21st October meeting does not achieve quorum, it will be held in another 7 days time – same place same time. Should that occur, Mr Zunker will request that the CBC meeting be adjourned until then for an outcome of a vote from Duhig. The CBC may or may not adjourn the meeting. The 7 days notice requirement would be complied with from the date of the amended voting paper.
  • If the 21st October meeting does achieve quorum, lotholders present will have discussion and Mr Zunker will be requesting consent from the meeting to adjourn the meeting until 25th October to give time for the voting papers to come in and votes to be recorded – 7 days notice from the date of the amended voting paper will be achieved.
  • If the meeting does not consent to the adjournment, Mr Zunker will take the votes on the day and if anyone objects, then an application to the Commissioner’s Office can be made.
    

Applicants’ Reply

The Applicant inspected the submissions made in response to the application for both interim and final orders and replied to the following effect:

• As Ms Wise points out, the BUGTA was not properly followed, and as a result, it was difficult for owners to understand the nature of the motions being submitted. The delay in providing some of the alternative motions and the reasons for such motions meant that owners scarcely had time to request further information.
• There is nothing in the Act that allows an “addendum” to be sent out after the Notice of Meeting, and in particular, to be sent out in less than 7 days prior to the meeting. Thus, the Addendum which was sent out containing some of the motions does not comply with the Act. The meeting was not called according to the legislation.
• The mandatory adjournment as set out in Schedule 2, Part 2, 3(3) is not designed to replace the requirements for proper Notices. A quorum was present on 21 October, but the chairperson adjourned the meeting until 25 October. As far as the Applicant is aware, no owners were notified of the new date for the adjourned meeting. Thus Schedule 2, Part 2, 3(3) was irrelevant to the actual meeting. In the end, owners had little time to discuss or explore the issues being raised, nor did they know that the meeting might be adjourned.
• The fact that owners could make an application to this Office if the meeting of 21 October was not adjourned was irrelevant in light of the fact that a submission had already been made.
• Upon his receipt of the Notice of Meeting for 21 October on 15 October, the Applicant immediately notified Mr Zunker of the mistake. The simple solution was to ask Archers to immediately resend the corrected notice and to change the meeting date to 25 October, the date that was set for the adjourned meeting.
• The question is not what view Mr Fisher and the Applicant hold, but whether or not the chairperson or secretary has the authority to send out a Notice of a General Meeting which does not comply with the legislation.
• This application is not about motions passed or considered at the meeting held first on 21 October 2010 and then adjourned until the 25th. It is about the rights of owners to expect that with regard to the calling of meetings, the legislation will be followed so that they have sufficient time to investigate motions being put to that meeting. In the past 4 years, the Applicant has seen at least 2 other occasions when Mr Zunker has been involved in calling inappropriate meetings.
  

Update

The meeting scheduled for 21 October 2010 was adjourned until 25 October 2010. The only motion carried at the adjourned meeting was the first, which was to adopt as a true and correct record, the minutes of the adjourned Annual General Meeting held on 17 May 2010. All three motions in relation to the caretaking contract failed, along with another motion in relation to a visitor car park.

Determination

Relevant Law

The BUGTA contains relevant provisions to the following effect:

• An EGM shall be held whenever it is convened by the committee (s.1(2), Part 2, Schedule 2).
• Any person entitled to vote at a general meeting of a body corporate may by notice in writing served on the secretary of the committee require inclusion in the agenda of the next general meeting of the body corporate (other than a meeting in respect of which notices have already been given under section 1(4)) of a motion set out in the first mentioned notice and the secretary shall comply with the notice (s.13(1), Part 2, Schedule 2).
• Notice of a general meeting of a body corporate shall:
  1. be served on each proprietor at least 7 days before the meeting (s.1(4)(a), Part 2, Schedule 2);
  2. set forth the date and time when and the place where the meeting is to be held (s.1(4)(b), Part 2, Schedule 2);
  3. set forth the business of the meeting and therein, in respect of each motion to be considered by the meeting, specify whether the motion to be carried requires a resolution, special resolution, resolution without dissent or unanimous resolution (s.1(4)(d), Part 2, Schedule 2).
• Every notice for a general meeting shall be accompanied by a voting paper in respect of each motion to be considered and determined at the meeting for use by a person entitled to vote if the person wishes to cast a vote in writing (s.1(6)(b)(i), Part 2, Schedule 2)
• A motion shall not be submitted at a general meeting unless notice of the motion has been given in accordance with this section (s.1(7), Part 2, Schedule 2).
• The chairperson of a general meeting may with the consent of the meeting adjourn any general meeting from time to time and from place to place but no business shall be transacted at an adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place (s.1(9), Part 2, Schedule 2).
• A motion submitted at a general meeting of a body corporate shall not be considered at that meeting unless the number of persons present at that meeting either personally or by proxy and entitled to vote, together with the number of voters whose votes are cast in writing on that motion or election, constitute a quorum for considering that motion (s.3(1), Part 2, Schedule2).
• One-fourth of the persons entitled to vote on a motion constitute a quorum for considering that motion (s.3(2), Part 2, Schedule 2).
• Where there is no quorum within one-half hour after that motion or business arises for consideration at that meeting, the meeting shall stand adjourned to the same day in the next week at the same place and time and if there is no quorum, the persons present personally or by proxy and entitled to vote, together with the number of voters whose votes are cast in wirting on that motion or on that election, constitute a quorum (s.3(3), Part 2, Schedule 2).
• At a general meeting of the body corporate, the chairperson may rule that a motion submitted at the meeting is out of order if (s.4, Part 2, Schedule 2):
  • (a) The chairperson considers that the motion, if carried, would conflict with the BUGTA, or the by-laws, or would otherwise be unlawful or unenforceable; or
  • (b) Section 1(7) has not been complied with with respect to the motion.
• A vote on a motion submitted at a general meeting of a body corporate may be cast (s.5, Part 2, Schedule2):
  • (a) By the person entitled to vote, either personally or by the person’s proxy duly appointed in writing; or
  • (b) By furnishing to the secretary of the body corporate a voting paper referred to in section 1(6)(b) indicating the vote of the person entitled to vote on that motion.
• Notwithstanding that a person entitled to vote at a general meeting of a body corporate has cast a vote on a motion submitted at that meeting on a voting paper, if the person attends that meeting either personally or by another person holding a proxy, the person may before commencement of the business of the meeting notify the chairperson or secretary of the body corporate that the person withdraws that voting paper and where the person does so (s.6, Part 2, Schedule 2):
  • (a) For the purpose of determining whether there is a quorum for consideration of any such motion, the person’s voting paper shall be disregarded; and
  • (b) For the purpose of counting the votes on that motion, the person’s voting paper shall be disregarded; and
  • (c) The person or the person’s proxy may vote on that motion in the same manner as if the person had not furnished that voting paper.
    

Decision

Validity of Meeting

From the information supplied in the application and submission, as stated in my reasons for the interim decision, it appears as though the following breaches of the BUGTA occurred in relation to the original Notice of Meeting, dated 12 October 2010:

• Failed to specify, in respect of motions 4 and 5, whether the motion to be carried requires a resolution, special resolution, resolution without dissent or unanimous resolution (s.1(4)(d), Part 2, Schedule 2);
• Was not accompanied by a voting paper in respect of each motion to be considered and determined at the meeting (in respect of motions 4 and 5) for use by a person entitled to vote if the person wishes to cast a vote in writing (s.1(6)(b)(i), Part 2, Schedule 2).
  

In respect of the re-issued Notice of Meeting dated 15 October 2010, it appears as though the above breaches of the BUGTA were remedied. However, this came at the expense of a breach of the requirement in s.1(4)(a), Part 2, Schedule 2 to provide at least 7 days notice of the meeting scheduled for 21 October 2010, although the adjourned meeting which was held on 25 October 2010, was ultimately held after 7 days notice to owners.

For the reasons outlined in my interim decision, I declined to order any form of interim relief to either prevent the meeting from proceeding, or to prevent any motions purportedly decided at it from being implemented. In light of the results of the meeting, at which only one motion (to confirm the minutes of the most recent Annual General Meeting) was passed, with no dissenting votes, I do not see any need to investigate this matter further. In the absence of any owner either making application with the office after 21 October 2010, or making submission in response to this application, complaining of any disadvantage suffered by the lack of notice (except for the submission from the owner of lot 46, which in my view was more critical of the content of the notice, or lack thereof, rather than the period of notice given) I decline to make a final order declaring the meeting invalid, as requested to do so by the Applicant.

Calling of General Meetings Generally

In relation to the first and second orders sought by the Applicant, I decline to make any orders, on account of there not being any “dispute”.

After the application for the interim order was dismissed, and the outcome of the meeting ultimately held on 25 October 2010 known, the Applicant was given the opportunity to advise whether he still wished to proceed with the application for final orders. The Applicant advised that he believed the application needed to proceed because the final orders seek a ruling as to whether a general meeting should go ahead if the agenda/calling of the meeting is not done correctly. He further stated that that was a problem in their building and therefore should at least find out what the ruling would be in such a scenario.

This application has been made pursuant to section 77(1) which relevantly provides a power for a referee, on application of a proprietor, to make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel. As mentioned earlier, under ‘Jurisdiction’, a referee’s power to make an order in relation to the MUD Act is conferred by section 214A of that Act.

Relevantly, section 77(1) specifies that a ‘dispute’ or ‘complaint’ must relate to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act. Section 214A contemplates a ‘dispute’ about the MUD Act’s operation
or the rights and obligations of persons under the MUD Act. A referee’s power under section 77(1) is to settle the ‘dispute’. In my view, these provisions require the existence of a ‘dispute’.

However, neither Act defines the meaning of ‘dispute’. In the comparable dispute resolution jurisdiction conferred by the Body Corporate and Community Management Act 1997 (BCCM Act), section 227 prescribes the meaning of ‘dispute’ as being between particular parties such as the owner of a lot and the body corporate, with section 238 stating that A person ... may make an application if the person is a party to, or is directly concerned with, a dispute to which this chapter (chapter 6) applies and has made reasonable attempts to resolve the dispute by internal dispute resolution. Section 276(1) of the BCCM Act provides that an adjudicator may make an order to resolve a dispute. Subsection (1) also contemplates the making of a declaratory order, but there is no equivalent power in the BUGT Act.

The issue of the existence of a ‘dispute’ under the BCCM Act has been considered by the District Court (the then appellant jurisdiction against an order made by a department adjudicator under the BCCM Act). In K.G. Tully & Anor. v The Proprietors The Nelson Body Corporate [2000] QDC 031,
Judge Robin QC held that There must be “dispute” before an adjudicator has jurisdiction. The application identified the committee of the body corporate as the other party to the dispute. The respondent's case is that the nature of the permission sought by the appellants was such that
the body corporate itself must give permission or authority; it never having been asked by the appellants to do so there can be no dispute involving it as a party, and therefore no right in the applicants to apply to the adjudicator on the basis that they are parties to "a dispute" for
purposes of s.192(1)(a) (renumbered as section 238). The objection to the application is sound in principle, in my opinion. The existence of a relevant “dispute” is fundamental to an adjudicator having jurisdiction.

In Dindas & Anor v Body Corporate for One Park Road CTS 2114 & Ors [2006] QDC 302, Judge Wilson SC removed an adjudicator’s order stating that “The dispute resolution provisions do not empower an adjudicator to make orders about how a lot owner may vote in relation to a future matter, and limit the adjudicator’s powers to circumstances where a power has been exercised contrary to the legislation. The adjudicator has assumed (without any factual foundation for the assumption) that all future proposals for the appointment of a building manager by either the appellants, or the respondents will be "unreasonable" and, therefore, invalid when there is
no proper basis for that presumption. Further, there is nothing in the Act or modules that prevent a lot owner from voting at a general meeting in favour of the appointment of themselves as a service contractor, even though they might derive a direct or indirect benefit.”

These comments are relatable to the jurisdiction of a referee under the BUGT Act and support the view that a referee only has jurisdiction to make an order if there is an identifiable ‘dispute’. I am not aware of any provision in the BUGTA or the MUD Act which empowers a referee to deal
with an anticipated contravention of either of these Acts (in contrast to the power of an adjudicator under section 276(1) of the BCCM Act). The BUGT Act and the MUD Act are quite specific in conferring powers on a referee. It should also be noted that section 214A of the MUD Act does
not in any way confer exclusivity.

The Applicant purported to seek, in the first and second orders sought, a declaration concerning the validity of future extraordinary general meetings because it would be desirable to know what the ruling would be in a scenario where a Notice of General Meeting was not issued correctly. The application in relation to the meeting scheduled for 21 October 2010 and adjourned to 25 October 2010 has been determined. The Applicant goes on to seek orders in relation to a hypothetical situation which may or may not eventuate in the future. In such circumstances, I do not consider that the first and second final orders sought relate to a ‘dispute’ of the nature mentioned in section 214A of the MUD Act. I do not consider that a referee has power to make orders about matters that are not in existence at the time an application is lodged. I consider that a referee’s powers are limited to circumstances where a power has been exercised contrary to legislation.

If a “dispute” does arise in the future, then an interested party will be at liberty to make an application with this Office at that time.

In my view, the ‘dispute’ the subject of this application has been resolved and the ‘dispute’ which the applicant contemplates in relation to the calling of future extraordinary general meetings is not a dispute about the operation of the MUD Act or the rights and obligations of persons under the MUD Act, at this stage. Therefore, the first and second final orders sought are also dismissed.

Order

For these reasons, I make the order above.