Barard Management Pty Ltd v Carmont

DISTRICT COURT OF QUEENSLAND

CITATION:

Barard Management Pty Ltd v Carmont & Anor [2003] QDC 290

PARTIES:

BARARD MANAGEMENT PTY LTD (ACN 010 622 125)

Appellant

v

TRACEY CARMONT

First Respondent

and

THE BODY CORPORATE FOR TUDOR ROSE COURT CTS 17659

Second Respondent

FILE NO/S:

BD 552 of 2003

DIVISION:

PROCEEDING:

Appeal from adjudicator’s order.

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

21 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2003

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed with costs

CATCHWORDS:

HOME AND COMMERCIAL UNITS – Body Corporate – general meeting – quorum for – how ascertained

Body Corporate and Community Management (Accommodation Module) Regulation 1997 ss 46, 47.

Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 – followed.

Levenstrath Community Association Inc v Shire of Nymboida (1999) 105 LGERA 362 – followed.

COUNSEL:

S L Moody for the appellant

P J Hay for the respondents

SOLICITORS:

O’Shea Corser & Wadley for the appellant

Ros Janes Lawyer for the respondents

1. This is an appeal from a decision of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”). The decision of the adjudicator was made on 14 January 2003. The adjudicator declared that an extraordinary general meeting of the respondent body corporate held on 26 September 2002 was void and that any resolution purportedly made thereat was invalid and of no effect. One of the resolutions was that the appellant be reappointed body corporate manager for one year from 1 May 2002. The commissioner had on 26 September 2002 invited the appellant to make a written submission about the application, so the appellant is an aggrieved person and entitled to appeal against the decision. By s 289(2) the appeal is only on a question of law.

Background

1. Tudor Rose Court is a community title scheme under the Act consisting of 48 lots and common property. The Body Corporate and Community Management (Accommodation Module) Regulation 1997 (“the Regulation”) applies to the scheme. The appellant had been appointed body corporate manager for the period 21 April 1999 to 20 April 2002. At the annual general meeting of the body corporate held on 29 May 2002 a resolution that the appellant be appointed for one year from 1 May 2002 was deferred. At an extraordinary general meeting on 26 September 2002 the minutes record that the resolution was carried that the appellant be reappointed for that period, there being six votes for, three against and two abstentions.

1. On 16 September 2002 the first respondent had applied to the Commissioner for Body Corporate and Community Management seeking the appointment of a particular body corporate manager for a period of three months in order to call for quotes and to conduct the necessary meetings to appoint a body corporate manager in the correct manner.  That was sought as an interim order, but on 24 September 2002 the adjudicator dismissed the application for interim relief, although the body corporate was restrained from engaging or entering into further agreements with any…