Kookaburra Park Eco Village [2011] QBCCMCmr 99 (8 March 2011)

Number of Scheme:	19671
Name of Scheme:	Kookaburra Park Eco Village
Address of Scheme:	4528 Bundaberg Gin Gin Road GIN GIN QLD 4671

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jennifer Abbott, the owner of Lot 25

I hereby order that the person chairing the Annual General Meeting of the body corporate held on 25 September 2010 did not have the power to rule Motions 30, 31 and 32 out of order.

I further order that in all other respects, the application for an order by Jennifer Abbott, the owner of Lot 25, is dismissed.

The application
This application was made to the commissioner on 30 November 2010 (amended 9 December 2010) by Jennifer Abbott, the owner of Lot 25, (applicant) against the body corporate seeking declarations:

On 14 December 2010, the commissioner invited submissions from the owner of each lot (excluding the applicant) and the committee regarding the application under section 243 of the Body Corporate and Community Management Act 1997 (Act). Submissions were made by 14 lot owners and the committee. The applicant made a written reply to submissions.

On 17 February 2011, the commissioner made a dispute resolution recommendation under section 248 of the Act referring the application to departmental adjudication.

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act).

In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 28 February 2011 I sought submissions from the secretary about general meetings held in 2008. The secretary provided the requested information on 1 March 2011.

Decision
Motion 30
Motion 30 proposed by the committee: “That the body corporate rescinds the following motion passed at the AGM 5 September 2004: ‘That the process for dealing with contraventions of by-laws as specified in the attached information sheet 1 be accepted as the official process in Kookaburra Park’”.

The explanatory note to the motion stated: “Current legislation instructs the body corporate about how breaches of by-law must be dealt with. The official process as determined by this motion leaves the decision as to whether there has been a breach of by-laws in the hands of just one executive member of the committee. As this motion is not line with current legislation it should be rescinded”. It would seem the notice of the 2010 AGM included a copy of the information sheet titled Information Sheet 1 Dealing with Contraventions of By-laws dated June 2004. Motion 30 was to be decided by ordinary resolution.

The minutes of the 2010 AGM indicate the motion was ruled out of order for the reason: “This motion was taken to adjudication on 17/2/05 where the adjudicator ruled that this motion is valid and consistent with the BCCM Act and Regulations. This advice must be respected and therefore Motion 30 ruled out of order”. A motion to overturn the chairperson’s ruling was not passed.

Motion 30 refers to the Annual General Meeting dated 5 September 2004 (2004 AGM). The minutes of this meeting indicate Motion 22 “That the process for dealing with contraventions of by-laws as specified in the attached information sheet 1 be accepted as the official process in Kookaburra Park” was initially ruled out of order, the ruling was reversed and the motion was passed by ordinary resolution.

This resolution was subsequently disputed under the Act. In Kookaburra Park Eco Village [2005] QBCCMCmr 94 (17 February 2005), the adjudicator dismissed the application seeking an order that the resolution passed on Motion 22 be voided. The adjudicator stated:

“I do not understand what the applicant means. Merely saying something is “against the Act” or “against the powers/duties given the committee” provides no argument or evidence for consideration – they are meaningless generalities.

The applicant then refers to “attachments 3 and 4”; “3” is the letter submitting the motion with Sheet 1 attached, while “4” states that sections 182 and 183 of the Act require that it be the committee which serves a contravention notice on an offender, not the chairperson as shown in the sheet.

How paragraphs 1 and 4 conflict is not explained. The latter argument that only the committee can issue a contravention notice is correct. However, the sheet merely states that if the chairperson considers a contravention is continuing, then a notice “is issued in accordance with the Act”. It does not say the chairperson determines that a notice should issue, or that the chairperson issues it, but that it is to be done in accordance with the Act which is by decision and action of the committee. The applicant has jumped to a particular interpretation that does not exist. I do not intend to take this any further.”

My reading indicates the same information sheet was the subject of the motions at the 2004 AGM and the 2010 AGM.

The applicant recognises the 2005 adjudication stating even though the resolution was found to be lawful, it does not follow that the motion cannot be rescinded.

Beverley Kane (co-owner of Lot 62 and the chairperson of the 2010 AGM) confirms the minutes taken for the motion submitting there is no need to rescind the motion while it is consistent with the legislation. Peter Van Beek of Lot 50 states the justification for the motion about one executive member of the committee making a decision about a breach of by-laws was rejected by the adjudicator. Geoff King of Lot 35 submits the original motion cannot be updated if the outcome sought is not granted.

In replying to submissions, the applicant says even if the explanatory text is in error, the fact that it is easy to come to the stated conclusion is reason to get rid of poorly worded procedures.

The body corporate must conduct meetings in the way prescribed under the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) (s 104(1)(b), Act). The person chairing a general meeting must rule a motion out of order if the motion, if carried, would conflict with the legislation, the by-laws or a motion already voted on at the meeting or if it would be unlawful or unenforceable for another reason (s 81(1), Standard Module). The reasons given by the person chairing the meeting for ruling the motion out of order must be recorded in the minutes of the meeting (s 81(4), Standard Module).

Motion 30 proposed rescinding an earlier resolution passed by ordinary resolution. A motion passed by ordinary resolution may be revoked by ordinary resolution (s 95, Standard Module). The minutes of the 2010 AGM refer to the adjudication made on 17 February 2005. This order did not affect the resolution passed on Motion 22 at the 2004 AGM. It merely dismissed an application proposing that the resolution be declared void. Neither the making of the application nor the order prevented the body corporate from revoking or amending the resolution. The fact the resolution made at the 2004 AGM may be consistent with the legislation is not reason in the circumstances for ruling Motion 30 out of order.

There may be a question about the correctness of the explanatory note to the motion given the adjudicator’s comments. However, there is nothing in the minutes of the 2010 AGM or in submissions that suggests the note was instrumental in the decision made by the person chairing the meeting.

In my view, the reasons stated in the minutes of the 2010 AGM are not justification for ruling Motion 30 out of order.

Motion 31
Motion 31 proposed by the committee: “That the committee follow through with Motion 17 of the EGM 3rd Dec 2008, and place a ‘Give Way’ sign on Oxhill Drive at the intersection of Lakeview and Kookaburra Drive, and remove the ‘Stop’ sign on Lakeview Drive”.

The explanatory note to the motion stated: “In the interest of safety and visibility, and in line with the traffic act this proposed change is necessary”. Motion 31 was to be decided by ordinary resolution.

The minutes of the 2010 AGM indicate the motion was ruled out of order for the reason: “There is already a motion passed in 2008 that is in conflict with this motion. Therefore Motion 31 must be ruled out of order”.

The applicant submits the conflicting motion was not a motion already voted on at the meeting.

Beverley Kane (co-owner of Lot 62 and the chairperson of the 2010 AGM) submits the resolution passed on Motion 22 at the Annual General Meeting dated 6 September 2008 (2008 AGM) conflicts with this motion: “That the maintenance crew be authorised to move the ‘Stop’ sign situated on Oxhill Drive at the junction with Lakeview and to erect it on Lakeview Road”. She states if Motion 31 was passed, the committee would not know which sign should be placed at which part of the intersection. Ms Kane argues the motion, if carried, would be unenforceable due to conflicting instructions to the committee (s 81(1)(a)(ii), Standard Module). She states other motions were passed at the Extraordinary General Meeting dated 13 December 2008 (2008 EGM) relating to this intersection: “That the body corporate instructs the committee to investigate and address, as a matter of urgency, the safety issues and potential liability inherent at the T junction where Oxhill Drive meets the entrance drive into the Ecovillage” (Motion 16) and “That the body corporate instructs the committee to investigate and address the inappropriate signage at the Lakeview Drive culvert at Ring Lake” (Motion 17).

Peter Van Beek states Motion 22 at the 2008 AGM should be amended rather than ignored so there would not be any conflict or uncertainty.

In reply, the applicant states the motion is unambiguous that the current stop sign be removed and a give-way sign placed, and concerns about conflicting motions or instruction disappear if the most recent resolution has precedence.

Motion 31 referred to a meeting dated 3 December 2008. The applicant did not provide a copy of minutes of a meeting held on this date. Submissions do not refer to a meeting on this date. Ms Kane refers to Motions 16 and 17 passed at the 2008 EGM. At this meeting, the minutes of the 2008 AGM (the preceding meeting) were confirmed (s 76(2)(a)(v), Standard Module). Given this and the material provided by the secretary on 1 March 2011, I am satisfied there was not an extraordinary general meeting held on 3 September 2008 and Motion 31 referred to the 2008 EGM. There is nothing to suggest the incorrect meeting reference caused confusion among voters or that it made the motion unlawful or unenforceable.

The minuted resolution passed on Motion 17 at the 2008 EGM did not specifically instruct the committee to do what is proposed in Motion 31. The committee had “to investigate and address the inappropriate signage”. The committee must put into effect a lawful decision of the body corporate (s 101(2), Act). Ms Kane says it is her belief the committee investigated the intersection and determined the signage approved at the 2008 AGM was the best solution. The body corporate decided at the 2008 AGM to erect a ‘Stop’ sign on Lakeview Road.

The second part of Motion 31 about sign work would seem to relate to the control, management and administration of common property (s 94(1) and 152, Act). It is something on which the body corporate could make a decision. The earlier work as a consequence of the 2008 general meetings with respect to sign work on common property does not prevent the body corporate from making a subsequent decision about signage at the intersection. I do not see the conflict with the earlier resolutions that would warrant ruling Motion 31 out of order, particularly when it has not been demonstrated that the work could not be done or that it would be contrary to law. The motion seems to clearly spell out the proposed work. It is a matter for owners to decide whether they agree with the proposal.

In my view, the reasons stated in the minutes of the 2010 AGM are not justification for ruling Motion 30 out of order.

Motion 32
Motion 32 proposed by the committee: “That Motion 29 of AGM 05/09/04 ‘The body corporate approves a fire break and access driveway from Oxhill Drive to the back of Lot 33 to Lot 32 and the temporary parking of vehicles upon this access driveway’ be rescinded”.

The motion included an explanatory note and was to be decided by ordinary resolution.

The minutes of the 2010 AGM indicate the motion was ruled out of order for the reason: “The explanation refers to Bundaberg Regional Council approval for the operation of the Worm Farm at Lot 32/33. There is no reference in the approval to denying access to these lots. BCCM Act and Regulations state that every lot holder must have equal access to their lots. This motion was taken to adjudication in 2005. The adjudicator dismissed the application to overturn this motion. This advice must be respected, therefore Motion 32 is ruled out of order”.

The minutes of the 2004 AGM indicate Motion 29 was proposed in the terms stated in Motion 32, the person chairing the meeting ruled the motion out of order, the ruling was overturned and the motion was passed by ordinary resolution.

In Kookaburra Park Eco Village [2005] QBCCMCmr 94 (17 February 2005), the adjudicator dismissed the outcome sought that the resolution passed on Motion 29 be declared void stating:

“The use here is a casual use of common property for driving and parking of vehicles for short periods of time by customers and probably suppliers, and foot access by customers to their lot and the business. It is a small area of common property in comparison to the size of the scheme...the use by vehicles and customers on foot does not appear to interfere with any other owner’s use or enjoyment of the common property.

In relation to this use of the common property and other areas where the applicant believes the by-laws are being breached, the resolution passed in respect of Motion 9 on 5 July can be considered as an approval. That is, in regard to the by-law preventing parking on the common property without body corporate permission, this resolution does just that. Similarly in regard to the by-laws for Noise & Behaviour and Damage to Common Property and the Storage of Flammable Liquids Etc. As to the by-law concerning the Illegal Use of Lot Prohibited, that is a matter for the local government to decide, there being no by-law prohibitive of the commercial use of lots in evidence.

If the committee has not yet acted under the authority of the resolution to provide the Mingins with its written approval where required by a particular by-law, for example in regard to parking on common property, then it should do so in implementation of the body corporate decision.”

Beverley Kane (co-owner of Lot 62 and the chairperson of the AGM) confirms the minutes taken for the motion.

George and Katherine Mingin of Lot 33 submit the Bundaberg Regional Council does not have the power to determine how a lot is accessed from common property; the previous adjudication renders the motion unlawful; there would be significant costs to the body corporate to find alternative access to Lot 32; and revegetating the access driveway is not viable.

Mr Van Beek of Lot 50 states the approval was given in 2004 to improve traffic safety, to reduce maintenance costs, avoids claims about discrimination and it helps maintain the fire break. He argues the motion breaches section 180(5) of the Act and goes against the adjudicator’s decision.

In replying to submissions, the applicant submits rescinding the resolution will not deny access as it would basically mean a return to the situation that existed before the original motion was passed. The applicant refers to section 94(2) of the Act.

Motion 32 proposed rescinding an earlier motion passed by ordinary resolution. A motion passed by ordinary resolution may be revoked by ordinary resolution (s 95, Standard Module). The minutes of the 2010 AGM refer to the 17 February 2005 adjudication. This order did not affect the resolution passed on Motion 29 at the 2004 AGM. It dismissed an application proposing that the resolution be declared void. Neither the making of the application nor the order prevented the body corporate from revoking or amending the resolution.

At first glance, the body corporate could consider revoking the resolution passed on Motion 29 at the 2004 AGM. I do not see the relevance of the reference to Bundaberg Regional Council approval. It is not demonstrated that, if passed, the motion would be unlawful or unenforceable. The legislative reference to access to lots is not explained. The body corporate must administer common property for the benefit of lot owners and it must act reasonably making a decision (s 94(1)(a) and (2), Act). Even though some owners may be of the opinion a resolution on the motion would be unreasonable, it is not established that this is the case and it was justification for the ruling.

In my view, the reasons stated in the minutes of the 2010 AGM are not justification for ruling Motion 30 out of order.

General declaration
Lastly, the applicant seeks a declaration that a conflicting motion passed at a previous general meeting is not sufficient reason to rule a motion out of order.

The applicant states she asks for this declaration because of a view that a motion must be rescinded before a contradictory motion is introduced. The applicant refers to Motions 13 and 14, and 26 and 27 at the 2010 AGM. She believes the later motions would have been ruled out of order in the absence of the earlier motions. The applicant says a declaration would clarify the issue for the body corporate, facilitate compliance with the legislation and prevent future conflict.

Mr Van Beek states motions remain in force until executed, amended or rescinded; the committee or members must implement lawful motions; having two conflicting motions would place the committee or a member in the situation of breaching a motion regardless of what they do; and therefore the second contradictory motion would be unenforceable and out of order.

A motion may be submitted to a general meeting by a lot owner or the committee (s 69, Standard Module). It is a matter for the person submitting the motion to decide the form the motion takes. A motion properly submitted must be included on the agenda of a general meeting (s 76(2), Standard Module). A resolution passed on a motion may be amended or revoked (s 95, Standard Module). The person chairing a general meeting has power to rule a motion out of order (s 81, Standard Module).

While there may be disagreement amongst owners about the way motions should be presented, there is not a dispute to be resolved that warrants an order in the terms sought. As is the case with the disputed rulings made at the 2010 AGM, the power of the body corporate to revoke or amend a motion or the power of the person chairing a general meeting to rule a motion out of order is determined in each particular case with consideration given to the circumstances.

Consideration of business proposed in Motions 30, 31 and 32
For the reasons I have stated, the business proposed in Motions 30 to 32 at the 2010 AGM should have been voted on. The applicant has not, however, sought an outcome that the body corporate convene a general meeting for this purpose.

This does not prevent an order from being made to this effect. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

I have not made an ancillary order because there is nothing in submissions which suggests any of the business proposed in the motions is urgent or should not be otherwise delayed. If an owner or the committee would like the motion considered in general meeting, the motion should be submitted to the body corporate and included on the agenda of a general meeting in a way permitted by the legislation.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Kookaburra Park Eco Village [2011] QBCCMCmr 99 (8 March 2011)