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submission to the adjudication application REF 0030-2023. lot 27 v body corporate

submission to the adjudication application REF 0030-2023.

This is the submission of the owner of Lot 1.

The evidence on which this submission refers to is:

  1. The document “Letter from Committee after Internal Dispute Resolution 2018” attached with this submission
  2. Minutes of the Committee Meetings  and General Meetings that are contained in the folder assessable with this link folder https://drive.google.com/drive/folders/1k5uC6ZUmd0sSb-Pt-U_lUdwpY8DOPA9p?usp=sharing

My submission supports the application of Mr John Wurth.  However, it is my belief that he has asked for orders that are not achievable under schedule 5 of the Body Corporate and Community Management Act 1997 (BCCM Act 1997).

I also offer comments and information generally to the Commissioner on 

  1. the behaviour of committee, and individuals on the committee, of Somerset Gardens CTS 25221 and
  2. the performance of the Body Corporate Manager to Somerset Gardens.

It is hoped that these comments and information will assist the commissioner’s consideration.

I apologise that this is a lengthy submission. The extent of the problems with the committee at Somerset Gardens requires a detailed response to ensure the assistance to the commissioner. In the Information  to the Commissioner section of this submission, I will document examples, where the actions of the committee at Somerset Gardens have not been in the best interest of the body corporate and can be attributed to actions that contravened the code of conduct for both voting members and the body corporate manager.

Although as  Carmody J, in Campbell v The Body Corporate for 70 Bowen St CTS 15330 & Ors [2019] QCATA 69, when he warned that in community titles disputes, 

“orders cannot change human nature or impose good will and cooperation where there is none.”

I would assert that orders that hold people accountable are a powerful notice to both other people within the body corporate who in the future would serve in executive positions, and other bodies corporate, so that behaviour indicated will not go unchallenged.

Also, making such orders will place on record any interactions of how a committee and people on a committee should act. This will stop the situation where a person, or persons whose behaviour contravenes the Act, resign from a committee, only to re-join the committee at a time in the future, and continue to behave contrary to the Act. If interactions of how a committee and people on a committee should act and what behaviour should not be tolerated is recorded, body corporate members will be more informed when making decisions at election of committee members.

I believe orders should be made as follows:

Interim orders ( to allow the commission to properly investigate the matter)

  1. Under section 271(1)(a)(iii)  and 271(1)(a)(i) of the Body Corporate and Community Management Act 1997 the secretary of the Body Corporate Manager of Somerset Gardens CTS 25221 and the committee representative to Body Corporate Manager of Somerset Gardens CTS 25221, deliver to the commissioner, by way  of statutory declarations, that provide, all email communications between themselves and Archers (BCM) Gold Coast  or their employees, between 24th August 2022 till 28th November 2022.
  2. Under section  271(1)(b) and section 220(1)(h)  of the Body Corporate and Community Management Act 1997, the body corporate manager of Somerset Gardens CTS 25221, deliver to the commissioner the following records:
  1. The engagement authorisation as body corporate manager to Somerset Gardens CTS 25221
    1. all emails  or written correspondence from or to the body corporate between 24thAugust 2022 till 28th November 2022.

Final Orders

  1. The Annual General Meeting of Somerset Gardens CTS 25221, held on the 26th October 2022, is void for irregularity.
  2. That the body corporate of Somerset Gardens CTS 25221 call a General Meeting as a meeting under section 33(2) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 to be held no later than 30 days after the date of these orders, to deal with the stated business of:
    1. The appointment of executive and committee members 
    1. Redacting the agenda, voting papers and the explanatory schedule of issues related to motions 11-20 in the Annual General Meeting for CTS 25221 held on the 26th October 2022
    1. Redacting the minutes of the Annual General Meeting of issues relating to motions 11-20 
    1. Confirming under section 310 of the Body Corporate and Community Management Act 1997,  transactions are valid and binding between the body corporate and:
      1. Guardian Body Corporate with Audit Services
      1. Longitude Underwriting with Policy LNG- STR- 20054099
      1. AAA Goodfellas Trading as: First Class Cleaners Queensland with roof cleaning services 
      1. SAE Group supplying 6.6kw with installation of solar panels to the roof of lot 74
      1. Pango Holdings Pty Ltd ACN 622680568 with the  caretaking and Letting Agreement 
    1. The issue of section 37 notices to Ora Whaanga and  Mrs Lynne Smith,
    1. The issue of a section 142 notice to Archer (BCM) Gold Coast
    1. Giving directions to the committee to fix the  irregularities made in historical decisions by  previous committees
  3. That Archers BCM ( Gold Coast  ) comply with the terms of their engagement, including the code of conduct.

My comments for the Commissioner are:

  1. I am uncertain what order the owner of lot 27 is asking for, concerning motions 11.1-20,  to be ordered as “invalid”, for something that an adjudicator can order under schedule 5 of the BCCM Act.
  2. the owner of lot 27 states his desire to not have the AGM of Somerset Gardens declared void, out of concerns for contractual decisions taken at that meeting. However, I am not sure that the owner of lot 27 is aware of the provision of section 310 of the BCCM Act that protects those decisions.  Additionally, many of the grounds he gives in his application support declaring the AGM meeting as void.
  3. I believe that there are grounds to order this dispute to conciliation before making orders.  Lot owners reading the submissions will want the committee to enter into meaningful conciliation to call a general meeting and correct the general meeting of the 26th October 2022.
  4. The process for a committee of a body corporate making decisions, under the Body Corporate and Community Management (Accommodation Module) Regulations of  2020, is designed so that there is transparency to the benefit of owners. As the adjudicator in Contessa Condominiums [2013] QBCCMCmr 383 states

 “Owners who are not present at committee meetings have a right to know in what way the committee is exercising its powers…”.

If the regulations are, repeatedly, not followed, the body corporate has no way of knowing if the decisions made are in the best interest of the body corporate. 

Orders should be made that protect the integrity of the design of the legislation.

As a member of the body corporate, I do not want the financial resources of the body corporate wasted on disputes. The committee will have to pay body corporate management charges for additional services and legal fees for submissions to the Commissioner.  Particularly if

  • this dispute occurred due to the actions of individuals not all committee members, and
    • Those same individuals denied internal dispute resolution.
  • The events that surrounded the leading up to, during, and after, the 26th  October 2022 Annual General Meeting are not isolated instances of contravention of the code of conduct by individuals on the committee.

The essence of the problem is that individuals in executive positions appear to have acted, either alone or in small groups, representing the committee.

  • It is postulated that the actions of individuals on the committee may be due to either: 
    • ignorance of the requirements of their code of conduct, or
    • spite or ill-will.

There is evidence that the committee has been informed of its requirements. 

It would be reasonable to think that a competent Body Corporate Manager would have made the committee aware of the requirements of the Act and Regulations.

The possibility of decisions being made due to spite or ill-will, must be considered a possibility, as the only two individuals in authority to instruct the body corporate manager, about  the publication of motions 11.1 to 20 in the AGM, were the people who submitted  all but one of the motions.

  • I am aware of the opinion expressed in Parkwood Villas, [2016] QBCCMCmr 161,

“That minor instances of non- compliance will not invalidate a decision, particularly where a committee has acted in good faith.”

I believe that if the commission must look at the extent of the non- compliance, that it does not qualify as minor and that  the committee did not act in good faith, as the decisions were made by individuals.

An example of a minor instance of non- compliance, would be not sending the notice of motion in a vote taken outside of committee meeting to the non-voting member of the committee, if all other requirements under section 60 of the regulations were complied with . 

Making decisions, without emailing any other committee member, making decisions by email some members of the committee then not sending the motion to the non-voting members or not sending the advice of motion to any lot owner, not producing minutes of the motions and not confirming at the next committee meeting, is not a minor, nor insubstantial in nature non-compliance.

There is no evidence to indicate that the committee followed any of the above actions in making decisions on any matters between the committee meeting on the 24th August 2022 and the notice of the AGM for Somerset Gardens being given. The committee cannot have acted in good faith in this concern.

As Adjudicator  Barry,  indicated  in Kirribilli Heights [2021] QBCCMCmr 293, if a committee is made aware of non-compliance, if sufficient non-compliance occurs again, “it cannot plead ignorance.” 

Historically, three events need to be noted that indicated the committee was made aware of non-compliance. 

  • On the 9th September 2018 the committee sent a letter stating that they would act in accordance with the Act. The two executive committee members who appear to have made the independent decisions were also members of the 2018 committee.
    • minuted in the committee meeting on the 15th August 2018, when faced with the same situation the committee acted appropriately. At that meeting the committee:
    • sought legal advice, 
    • had legal practitioners attend the meeting to give that advice to the owner, 
    • discussed the motions at the meeting and
    • resolved to have the body corporate manager discuss the motions with the owner submitting the motions indicating that the motions would be ruled out of order.
    • In Mr Wurth’s submission, there are emails to executive members of the committee, indicating the committee need to make decisions in ways prescribed by the Act. It appears those individuals ignored the advice.
  • I would also assert that, as Adjudicator Barry’s comments in Kirribilli Heights [2021] QBCCMCmr 293 were widely reported, any reasonable Body Corporate Manager, should have relayed comments to a body corporate committee, that , in terms of committee’s acting in accordance with the Act:

“The body corporate will know better next time (if they have been told)” and 

“If committees ‘get it right’, so to speak, at first instance, this (validating previous actions) will not be necessary. 

  • I would also assert that the facts in this case are factually different to Kirribilli Heights [2021] QBCCMCmr 293 or Parkwood Villas, [2016] QBCCMCmr 161.

 As Adjudicator Barry,  in Kirribilli Heights [2021] QBCCMCmr 293, says

“the thrust of the arguments put by the Member Roney QC in Lovel, which in effect support the view that cases are factually dependent.”

In Kirribilli Heights [2021] QBCCMCmr 293 as Adjudicator  Barry noted, the actions of the committee being considered in the application were

 “Certainly not something the 2020 committee was trying to conceal from owners.”

The situation is different from the committee of Somerset Gardens, which did not disclose any of the irregularities of the events in putting motions 11 to 20  in the AGM of the 26th  October  2022 to owners in any subsequent meeting or correspondence.

  1. I am aware of the opinion expressed in Parkwood Villas, [2016] QBCCMCmr 161, that 

“Therefore, meetings and decisions should be preserved despite minor errors, omissions or other procedural irregularities in meeting procedures, unless it can be shown that there has been some fundamental disadvantage to voters.” 

I believe that in this instance such a disadvantage occurred since:

  1. voters at the 2022 AGM were faced with motions 11.1 to 20 with explanatory notes that were at best detrimental to Mr Wurth and at worst defamatory and there was no information provided to demonstrate whether the assertions made in the motions were true facts.
  2. The voters, as the body corporate are certainly disadvantaged having lost the protection of section 111A of the BCCM Act, due to the fact that the published material in the explanatory schedule were not required material, due to:
    1. the irregularities in those motions being submitted to the meeting by individuals not the committee, and
    1. those submitting the motions not acting reasonably, compared to previous actions in submitting motions. 
  3. I would assert that, as Judge Bolton, in Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29th  May 2001, concludes,  there is evidence  to invalidate a vote, due to malpractice or mistake being made, which gives rise for a real concern of the vote being fair.

This has occurred in the AGM of Somerset Gardens in 2022 because motions 11-20 in voting papers and explanatory notes were falsely represented as having been made by the committee, due to statements to that effect and no identification being on the motions or the explanatory notes identifying them as motions being submitted by owners.

I feel that this was unfair and prejudicial to Mr Wurth.

  1.  Despite the opinion of the adjudicators expressed in Parkwood Villas, [2016] QBCCMCmr 161 that if actions of a committee that have minor irregularities should not invalidate a committee decision, I believe that a decision of committee should be invalidated if a committee allows individuals to make decisions without due process. 

Equally, individuals making such decisions should be held accountable for what are blatant contraventions of the code of conduct for voting members of a committee.

My information to the Commissioner is:

A.   The Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th October 2022 was not called in accordance with section 72(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

1.    The minutes of the committee meeting of the 24th August  2022  were accepted as true and accurate at the committee meeting of the  28th November 2022, by 7 votes with no votes against. 

2.    The minutes of the committee meeting of the 24th August  2022 show that a motion was passed:

“That the committee call and convene the AGM for 10.30am, 12th October 2022 at Kings College Café (secretary to book the meeting venue)”[1]

3.    Notice of the AGM of Annual General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022, was given on or about the 5th October 2022.

4.    The only committee members who were authorised to correspond with Archers (BCM)Gold Coast, were the secretary Ms Ora Whaanga and Mrs Lynne Smith (voted as the committee representative to Archers at the  committee meeting on 8thDecember 2021).

  • In Mr John Wurth’s application there is an email on page 80 to Lynne Smith and Ora Whaanga dated 29th September 2022 at 8.52 am that states:

“In any event, an email vote won’t count. The agenda and the date & venue must be formally voted upon by the whole committee. This is not a mere technicality, to be ignored at the whim of the committee. Entire meetings have been overturned by the BCCM Office/QCAT over technicalities.”

  • In Mr John Wurth’s application there is an email on page 78 to Ms Daniele Jones dated 29th September 2022 at 11:52 am that details the process for a vote outside committee under section 60 the Body Corporate and Community Management (Accommodation Module) Regulation 2020, to which Mrs Lynne Smith is a cc.

7.    No notice of motion from the secretary, or any member of the committee, that authorised David Bourke or Archers  to call a General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022 was sent to the non-voting members of the committee any time between the 24th August  2022 and the notice being given for the Annual General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022, 

8.    No notice of motion or advice of motion was received by the owner of lot 1 from the secretary, or any member of the committee, that authorised David Bourke or Archers  to call a General Meeting of Somerset Gardens CTS 25221 to be held on the 26th October 2022 at any time between the 24th August  2022 and the notice being given for the Annual General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022,

9.    No copy of the record of motion was given by the secretary that authorised David Bourke or Archers to call a General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022 by the 26th  October 2022,  to comply with section 63(2)(a) and  63(4) of the of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

10.No copy of the record of motion was given by the secretary that authorised David Bourke or Archers to call a General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022 by the 26th  October 2022,  to comply with section 63(2)(b) and  63(4) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

11.A meeting of the committee was conducted on the 28th  November 2022, and was the next committee meeting after any vote outside of committee that was held between 24th August  2022 and the notice being given for the Annual General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022,

12.The minutes of the committee meeting of the 28th November 2022 did not record any motion that confirmed any vote outside of committee meeting having been decided as required under section 60 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020, as is required in section60(5)  of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

 

B.    The place of the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th  October 2022 was not called in accordance with section 82(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 and no notice to lot owners was issued under section 82(2) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020

 

1.    The minutes of the committee meeting of the 24th August  2022  were accepted as true and accurate at the committee meeting of the 28th November 2022, by 7 votes with no votes against. 

2.    The minutes of the committee meeting of the 24th August  2022 show that a motion was passed:

“That the committee call and convene the AGM for 10.30am, 12th October 2022 at Kings College Café (secretary to book the meeting venue)”[2]

3.    Notice of the Annual General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022, was given on or about the 5th October 2022 that the meeting would be located at the offices of Archers Gold Coast, Southport Central tower 3, Lvl 3, 9 Lawson Street, Southport.

4.    The location is 17.7km from the Scheme Land[3]

5.    Section 82(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 states:

“A general meeting must be held not more than 15km, measured in a straight line on a horizontal plane, from scheme land”

6.    The only committee members who were authorised to correspond with Archers (BCM)Gold Coast, were the secretary Ms Ora Whaanga and Mrs Lynne Smith (voted as the committee representative to Archers at the  committee meeting on 8thDecember 2021).

7.    No notice of motion from the secretary, or any member of the committee, that authorised David Bourke or Archers  to call a General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022 was sent to the non-voting member of the committee any time between the 24th August  2022 and the notice being given for the Annual General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022, 

8.    No notice of motion or advice of motion was received by the owner of lot 1 from the secretary, or any member of the committee, that authorised David Bourke or Archers  to call a General Meeting of Somerset Gardens CTS 25221 to be held on the 26th October 2022 any time between the 24th August  2022 and the notice being given for the Annual General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022,

9.    No copy of the record of motion was given by the secretary that authorised David Bourke or Archers to call a General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022 by the 26th  October 2022,  to comply with section 63(2)(a) and  63(4) of  the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

10.No copy of the record of motion was given by the secretary that authorised David Bourke or Archers  to call a General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022 by the 26th  October 2022,  to comply with section 63(2)(b) and  63(4) of  the Body Corporate and Community Management (Accommodation Module) Regulation 2020..

11.A meeting of the committee was conducted on the 28th  November 2022, which was the next committee meeting after any vote outside of committee that was held between 24th August  2022 and the notice being given for the Annual General Meeting of Somerset Gardens CTS 25221 to be held on the 26th  October 2022,

12.The minutes of the committee meeting of the 28th November 2022 did not record any motion that confirmed any vote outside of committee meeting having been decided as required under section 60 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020, as is required in section60(5)  of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

 

C.    The agenda was not prepared for the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th  October 2022 in accordance with section 83 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020

 

1.    The minutes of the committee meeting of 15th  August 2018 have been resolved to be adopted as a true record on the meeting at the committee meeting of the  15th November 2018

2.    At the committee meeting of 15th  August 2018, Peter Nash and Hayley Gath, legal representative from MHL attended at the committees request.

3.    At the committee meeting of 15th  August 2018 an agenda item read “private owner motions to AGM”

4.    At the committee meeting of 15th  August 2018 legal advice was given to the committee

5.    It was resolved at the committee meeting of 15th  August 2018 for the strata manager to talk to the owner and suggest the withdrawal of the owner’s motions as, if left in,  they would be ruled out of order.

6.    The minutes of committee meeting of 24th  August 2022 have been resolved to be adopted as a true record on the meeting at the committee meeting of the  28th November 2022.

7.    At the committee meeting of 24th August 2022 no correspondence was presented to the meeting

8.    At the committee meeting of 24th  August 2022 Motions 11-20 from lot owners (lots 21,44 and 13) were not presented in the agenda as motions to be include on the voting papers or that explanatory notes were to be placed in the explanatory schedule to be published with the notice of the general meeting of the Body Corporate of Somerset Gardens CTS 25221

9.    The minutes of 24th  August 2022 did not reflect that the committee resolved to place motions in the agenda for the general meeting of the Body Corporate of Somerset Gardens CTS 25221 held on the 26th October 2022, but those motions were in the agenda and voting papers were produced accompanied by explanatory notes.

 

D.   The voting papers of  the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th October 2022 were not prepared  in accordance with section 78(5)(d) and 78(6)(b),  of the Body Corporate and Community Management (Accommodation Module) Regulation 2020

1.    At the committee meeting of 24th  August 2022 the secretary did not present voting papers  to the meeting

2.    The voting papers presented at the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th October 2022, under the instruction reads:

“all motions are submitted by the committee unless otherwise stated”

3.    The voting papers presented at the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th October 2022, motions 10 to 20 do not state, as required under section 78(6)(b), the name and lot number of the person submitting the motion

4.    The absence of the name and lot number or person submitting the motion and the statement under the instructions make the voting papers false and misleading with the possibility that a voter may believe that these motions were from the committee[4][5]

5.    The voting papers presented at the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th October 2022, motions 10 to 20 do not state, as required under section 78(5)(d), that an explanatory note for the motion is included in the explanatory schedule. 

6.    If a voter consulted the explanatory material for clarification, note there is also no indication that the motion is from a lot owner not the committee.

 

E.    The explanatory material accompanying the material of the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th  October 2022 was not prepared  in accordance with section 80(2),  80(4), 80(6) and 80(7) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020

7.    The same legal advice given at the committee meeting held on the 15th August 2018 concerned the explanatory notice given by the lot owner.

8.    The minutes of the committee meeting of 24th  August 2022 have been resolved to be adopted as a true record of the meeting at the committee meeting of the  28th  November 2022.

9.    At the committee meeting on 24th  August 2022 no correspondence was presented to the meeting

10.At the committee meeting of 24th  August 2022 Motions 11-20 from lot owners (lots 21,44 and 13) were not presented in the agenda as motions to be include on explanatory notes to the  voting papers that  were to be placed in the  explanatory schedule to be published with the notice of the general meeting of the Body Corporate of Somerset Gardens CTS 25221 

11.The minutes of 24th  August 2022 did not reflect that the committee resolved to place the explanatory notes with the voting papers in the agenda for the general meeting of the Body Corporate of Somerset Gardens CTS 25221 held on the 26thOctober 2022, but those motions were in the agenda, voting papers were produced accompanied by explanatory notes

12.The explanatory schedule accompanying the voting papers with the agenda for the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26thOctober 2022, discusses motions 2 to 9, which are motions presented by the committee. Under section 80(7) of the regulations if the material is contained in a schedule of the committee’s explanatory material that is separate from the explanatory schedule for lot owner’s motions. This would lead a voter reading the explanatory schedule to conclude that all explanatory material, as the first 7 explanatory notes were from the committee all notes were from the committee.

13.The explanatory schedule accompanying the voting papers with the agenda for the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26thOctober 2022, discusses motions 10 to 20 and despite this do not state, as required under 

a.    section 80(2) the submitters name, 

b.    section 80(4)(b)  the original motions

14.The explanatory schedule accompanying the voting papers with the agenda for the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26thOctober 2022 is in contravention of section 80(6) as the explanatory schedule contains explanatory material written by a person other than the submitter of the motion[6][7].

15.If a voter went to the voting papers for clarification, there is also no indication that the explanatory material is from a lot owner not the committee.

F.    Despite procedural motions being passed from motions 11-20 at the Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th  October 2022 that those present and entitled  disagreed with the chairperson’s ruling, there was no procedural motion passed for motions 11-20 to reverse the ruling that motions 11-20 were out of order as required under  section 88(3),  of the Body Corporate and Community Management (Accommodation Module) Regulation 2020. 

  1. The resolutions voted on by meeting attendees at the AGM in motions 11-20, only were that they “disagree” with the chairperson’s  ruling, the motions did not reverse the chairperson’s ruling[8].
  • Section 88(3) says “The persons present and entitled to vote may reverse a ruling given under subsection (1)(a) by passing an ordinary resolution disagreeing with the ruling.”, so the motion should have been:

“That the persons present and entitled to vote resolve to reverse the ruling of the chairperson to rule motion 11.1 out of order, because they disagree with the ruling.”

G.   The letter sent to Mr John Wurth from Archers signed by David Bourke dated the 2nd November 2022 was not given under instruction by the body corporate of  Somerset Gardens CTS 25221 as:

1.    The minutes of the AGM of Annual General Meeting of Somerset Gardens CTS 25221 held on the 26th  October 2022 do not record a motion instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of the 2nd November 2022,

2.    No notice of motion from the secretary or any member of the committee instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of the 2nd November 2022, was sent to the non-voting member of the committee any time between the 26th October 2022 and 2nd November 2022, 

3.    No notice of motion or advice of motion was received by the owner of lot 1 from the secretary or any member of the committee instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of the 2nd November 2022, at any time between the 26th October 2022 and 2nd November 2022, 

4.    No copy of the record of motion was given by the secretary instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of the 2ndNovember 2022, to the non-voting member of the committee by the 23rd  November 2022,  to comply with section 63(2)(a) and  63(4) of the of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

5.    No copy of the record of motion was given by the secretary instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of the 2ndNovember 2022, to the owner of lot 27 by the 23rd  November 2022,  to comply with section 63(2)(b) and  63(4) of the of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

6.    A meeting of the committee was conducted on the 28th  November 2022. This was the next committee meeting after any vote outside of committee that was held between the 26th October 2022 and the 2nd November 2022. 

The minutes of the committee meeting of the 28th November 2022 , were accepted as true and accurate at the committee meeting of the 20th February 2023 by 7 votes with no votes against. 

The minutes of the committee meeting of the 28th November 2022 did not record any motion that confirmed any vote outside of committee meeting having been decided as required under section 60 of the of the Body Corporate and Community Management (Accommodation Module) Regulation 2020, as is required in section60(5)  of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

  • The letter sent to Mr John Wurth from Archers signed by David Bourke dated the 25th November 2022 was not given under instruction by the body corporate of  Somerset Gardens CTS 25221 as:

1.    The minutes of the committee meeting of the 28th November 2022 , were accepted as true and accurate at the committee meeting of the 20th February 2023 by 7 votes with no votes against. 

  • The minutes of the committee meeting of the 28th November 2022 record in discussion, the statement

“the committee have “considered the correspondence and written to John Wurth acknowledging the receipt of the correspondence and confirming that no further action will be taken”

The resolution passed was that the committee remove this item of business from the agenda passed 7 votes to 0.

The wording of this discussion indicates that the members of the committee had been in contact with Archers (BCM) Gold Coast and  David Bourke and gave instructions to write a letter to Mr John Wurth,  which Mr Bourke did before the committee meeting of the 28th November 2022.

The only committee members who were authorised to correspond with Archers were the secretary Ms Ora Whaanga (secretary) and  Mrs Lynne Smith (voted as the committee representative to Archers at the  committee meeting on 8th December 2021).

  • No notice of motion from the secretary or any member of the committee instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of the 25th November 2022, was sent to the non-voting member of the committee at any time between the 10th November to the  24th  November 2022, 
  • No notice of motion or advice of motion was received by the owner of lot 1 from the secretary or any member of the committee instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of 25th November 2022, was sent to the non-voting member of the committee at any time between the 10thNovember to the 24th  November 2022, 
  • No copy of the record of motion given by the secretary instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of the 25th November 2022 was in the minutes of the meeting of 28th November 2022 , to comply with section 63(2)(a) and  63(4) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.
  • No copy of the record of motion given by the secretary instructing David Bourke or Archers to write to Mr John Wurth to state the facts stated in the letter of the 25th November 2022 was in the minutes of the meeting of 28th November 2022 , to comply with section 63(2)(b) and  63(4) of the of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.
  • A meeting of the committee was conducted on the 28th  November 2022. This was the next committee meeting after any vote outside of committee that was held between the 10th November to the  23rd  November 2022, 
  • The minutes of the committee meeting of the 28th November 2022, were accepted as true and accurate at the committee meeting of the 20th February 2023 by 7 votes with no votes against.  

The minutes of the committee meeting of the 28th November 2022  did not record any motion that confirmed any vote outside of Committee meeting having been decided as required under section 60 of the of the Body Corporate and Community Management (Accommodation Module) Regulation 2020, as is required in section60(5)  of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

  1. The actions of Archers (BCM) Gold Coast demonstrate multiple contraventions of the code of conduct required under schedule 2 of the Body Corporate and Community Management Act 1997.

                      a.         At the Body Corporate Committee meeting held on the 24th  August 2022 Archers BCM (Gold Coast)  failed to meet the standards of the code of conduct of the Body Corporate Manager, in that it failed to advise the committee of its requirements of section 83 of BCCM (accommodation module) Regulations 2020.

                      b.         Archers BCM (Gold Coast) failed to meet the standards of the code of conduct of the Body Corporate Manager in communications with Ms Ora Whaanga (Secretary) and Mrs Lynne Smith (Treasurer), between the  24th  August 2022 and the 26th  October 2022 when it allowed:

                       c.         The inclusion of motions 11 to 20 in the Agenda when not properly resolved by the committee at the Body Corporate Committee meeting held on the 24th  August 2022,

                      d.         Allowing the publication of potentially defamatory material related to motions 11 to 20 with the Agenda, of the Annual General Meeting of Somerset Gardens CTS 25221

                      e.         Archers BCM (Gold Coast) failed to meet the standards of the code of conduct of the Body Corporate Manager at Annual General Meeting of Somerset Gardens CTS held on the 26th  October 2022 when it failed to advise the meeting that motions 11 to 20 were out of order and incorrectly advised on the actions that could follow.

  • Ms Ora Whaanga and  Mrs Lynne Smith are the only committee members in 2022 who have a history on the committee dating back to 2016 and 2017. There is a pattern of behaviour that demonstrates contraventions of the code of conduct required by voting members of the committee to making decisions.

1.    The minutes of the Annual General Meetings of Somerset Gardens CTS 25221, show  Ms Ora Whaanga was first elected to the committee on 18th  March 2016 and Mrs Lynne Smith nominated at the same  Annual General Meetings, but was not elected till 2nd  March 2017.

2.    The minutes of the Annual General Meetings of Somerset Gardens CTS 25221, held on the 25th  October 2017 show Ms Ora Whaanga was elected as secretary and  Mrs Lynne Smith as treasure at that meeting. 

3.    The caretaker raised a dispute with the committee and internal dispute resolution was held, at which both Ms Ora Whaanga and  Mrs Lynne Smith were in attendance.  The committee sent correspondence to the owner of lot 1 (the director of the caretaker company) on the 6th September 2018 that stated:

“it was agreed that all future decisions made by the committee will comply with the legislation and be conducted at a committee meeting or by way of a Vote Outside of Committee”

The relevance of noting the occurrence is that both Ms Ora Whaanga and  Mrs Lynne Smith  were at the internal dispute resolution that generated the correspondence, however either Ms Ora Whaanga and/or  Mrs Lynne Smith advised the body corporate manager on the 25th November 2022 to contact Mr John Wurth and deny him internal dispute resolution.

4.    The minutes of the Annual General Meetings of Somerset Gardens CTS 25221, held on the 24th  October 2018 when Ms Ora Whaanga was elected as chairperson and  Mrs Lynne Smith as treasure at that meeting. 

5.    In the minutes of following committee meetings, which Ms Ora Whaanga and  Mrs Lynne Smith attended, and held executive positions, there were are motions and comments made after the 6th September 2018.  At those meetings there were no dissenting votes against such motions,

a.    Minutes of a VOCM motion taken on the 15th November 2018, read:

“The motion resolved was that the committee resolves day to day items such as minor renovations, minor variations to common property, pet application and breach letter dealt with on a daily basis via email agreement and not wait for a formal VOCM. Only legal requirements will be presented via VOCM or wait until the next committee meeting for agreement and will be organised via the strata manager”.

 

b.    minutes of the committee meeting held on 8th December 2021 showed that

“The body corporate manager advised the meeting that in order for an email vote to be confirmed by the chairman, it was important that voting should ensure all other committee members are copied in on their vote. The chairman must declare at a scheduled committee meeting whether an email vote is confirmed or not and cannot do so unless he has written evidence that a majority voted with for or against the motion.”

 

c.     minutes of the committee meeting held on 24th January 2022 showed that

“Committee correspondence will need to be approved by all committee members[9] “

6.    Mrs Lynne Smith’s email of the 25th January 2022 where she states:

“we believe in the spirit of the law, not the letter of the law.”

7.    Sometime following the 15th November 2018 committee meeting, Ms Ora Whaanga and  Mrs Lynne Smith[10], resigned in coordination with  4 committee members that required a general meeting where a new committee was appointed, less than 6 months after their election.

  • details sufficient to identify the breach of Code of conduct by Ms Ora Whaanga, in relation to actions for the presentation of motions 11 to 20 to the Annual General Meetings of Somerset Gardens CTS 25221

a.    At the Body Corporate Committee meeting held on the 24th  August 2022 Ora Whaanga (Secretary):

i.      Did not present correspondence to the committee meeting from Ora Whaanga, Lynne Smith (treasurer) and Angela Bertram requesting motions be submitted to the next body corporate meeting 

ii.    Did not comply with section 93(1) of the regulations in the preparation of  the agenda for the body corporate meeting with motions submitted by Ora Whaanga, Lynne Smith (treasurer) and Angela Bertram

iii.   failed to comply with conflict of interest requirements, as required under section 58 of the regulations, with regard to her actions in the motions she had presented to the body corporate that were not presented to the meeting of the 24th  August 2022.

b.    Between the  24th  August 2022 and the 26th  October 2022, Ora Whaanga (Secretary)

i.      made a decision to call the general meeting that was not made under authority of a resolution of the committee, section 72 of the regulations, on a date that was different to what was decided by resolution in the 24th  August 2022 committee meeting.

ii.    made a decision that was not the decision of the committee and was unreasonable in terms of section 110(5) of the BCCM Act to allow the publication of potentially defamatory material related to motions 11 to 20 with the Agenda of the Annual General Meeting of Somerset Gardens CTS 25221

c.     At the Body Corporate Committee meeting held on the 28th   November 2022, there is evidence in item 4.2 that Ora Whaanga (Secretary) made a decision on behalf of the body corporate committee:

d.    to write to Mr John Wurth, before any resolution to do so by the committee on a decision complying with section 57 of the BCCM (accommodation module) Regulations 2020 

e.    to inform Mr John Wurth that “no further action will be taken” when no such resolution was made by the committee on a decision complying with section 57 of the BCCM (accommodation module) Regulations 2020

f.     allowed the minutes of the Body Corporate Committee meeting held on the 28th November 2022 to be incorrectly recorded.

  • Details sufficient to identify the breach of Code of conduct by Ms Ora Whaanga, in relation to the quotes for roof cleaning:

                      a.         The motion 2.6 was passed at the committee meeting of 24th  August 2022 and it was resolved that the committee submit a group of same issue motions at the upcoming AGM to authorise a contractor to clean the roofs and that T&S maintenance had a quotation tabled and discussed and Pressure Wash Co was described as “an alternative contractor”

                      b.         Motion 9 of the General Meeting of Somerset Gardens CTS 25221 was an alternative motion between option 1 Pressure Wash Co and option 2 AAA Goodfellas as Trading as First Class Cleaners[11], and there was no option for T&S maintenance[12].

  • The pattern of behaviour that demonstrates a code of conduct contravention is demonstrated by Ms Ora Whaanga, had a conflict of interest with an unapproved structure on her lot, but placed herself in a position to deal with the issue at the committee level, without indication of conflicts of interest being declared

1.    minutes of the committee meeting held on 20th  January  2020, showed that:

“Strata manager to send a continuing contravention notice to the lot owner 21 and if not resolved to make application to the commissioner office for conciliation”.

  • minutes of the committee meeting held on 6th  May 2020, showed that

“Strata manager to send a continuing contravention notice to the lot owner 21 and if not resolved to make application to the commissioner office for conciliation.”

  • minutes of the committee meeting  held on 24th January 2022, showed that

Ora Whaanga took over dealing with unapproved alterations on lots

  • minutes of the committee meeting  held on 11th May 2022 showed that

“Ora Whaanga has obtained information from Gold Coast City Council on this matter and advised it could prove an expensive exercise obtaining information from Council and/or other sources as to which structures meet/require Council approval. It was stated that if these structures meet Australian Standards in retrospect, they could be approved so it is legal. Ora will work with Michelle to create a list of unapproved alterations so the Committee can decide what further actions to take.
ACTION: Ora Whaanga “

  • Minutes of the committee meeting held on 24th August 2022 showed that

“there are unapproved structures installed on the scheme land and the committee will discuss the matter further”

  • minutes of the committee meeting held on 28th November 2022 showed that:

“Alterations and improvement

The secretary explained that mail correspondence has been sent to the caretaker and a response is awaited in relation to the matter.”[13]

  • At the committee meeting held on 20th Feb 2023, 

The motion for Alterations and improvement was removed from further consideration

  • The contravention of the code of conduct by Ms Ora Whaanga and  Mrs Lynne Smith is also demonstrated by their participation in a committee that did not put into effect the lawful decision of the body corporate, as required  by section 101(2) of the  BCCM ActThe minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 24th  October 2018, item 13 was passed 31 votes to 13 and item 13 resolved that:

“The Body Corporate to take the steps including:

“the committee must put into effect the lawful decisions of the body corporate.”

  1. Retain a surveyor to properly identify on the new exclusive use plans the area being occupied by owners
  2. Engage a lawyer to draft a motion (resolution without dissent) to be considered at the next AGM to alter the exclusive use allocation in accordance with the plans prepared by the surveyor.”
  • The committee held meetings on the 24th October 2018, 15th November 2018,  attended by Ms Ora Whaanga and  Mrs Lynne Smith, where no action was taken to put into effect motion 13 at the AGM of 2018.
    • Further meetings occurred on the 11th March 2019, 16th  May 2019, and the 15thAugust 2019,  when it was:

“resolved that a surveyor not be engaged and no provision for a surveyor included in this year’s budget”

  • During the following 2 years Mrs Lynne Smith and Ms Ora Whaanga returned to executive positions on the committee and took no actions to put into effect motion 13 of the AGM on the 24th  October 2018,
    • The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 10th  October 2019 show Mrs Lynne Smith nominated and was elected to the position of treasurer.
      • The minutes of the committee meeting  held on the 6th  May  2020 show Ms Ora Whaanga was appointed to the committee.
      • The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 14th  October 2020 show Ms Ora Whaanga was elected as secretary and  Mrs Lynne Smith as treasure at that meeting.

[1]section 72(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 states “ A general meeting may be called by a member of the committee, including a non-voting member of the committee, if the member is authorised by a resolution of the committee to call the particular meeting.” 

[2]section 72(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 states “ A general meeting may be called by a member of the committee, including a non-voting member of the committee, if the member is authorised by a resolution of the committee to call the particular meeting.” 

[3]https://www.google.com/maps/dir/51+Gemvale+Rd,+Reedy+Creek+QLD+4227/Southport+Central+Tower+3,+9+Lawson+Street,+Southport+QLD/@-28.0258727,153.2424269,11z/data=!3m1!4b1!4m14!4m13!1m5!1m1!1s0x6b91032e95967c05:0x8cb762b34ee2387f!2m2!1d153.39818!2d-28.097921!1m5!1m1!1s0x6b910f6c6f36d6f5:0xaa7aaebf0cef84a3!2m2!1d153.413146!2d-27.9706028!3e0

[4] This is evidence of either malpractice or mistake, which gives rise for a real concern of the vote being fair.

[5] This prejudiced Mr Wurth

[6] This is evidence of either malpractice or mistake, which gives rise for a real concern of the vote being fair.

[7] This prejudiced Mr Wurth

[8] Though this itself is not relevant to over turning the decision, this action should be taken as an accumulation of actions that example the contraventions  of the code of conduct and irregularities with the 2022 AGM of Somerset Gardens.

[9] This is an unwise motion as “all committee” members include the “non-voting member”

[10] Ms Ora Whaanga and  Mrs Lynne Smith were criticised for their behaviour in the treatment of the caretaker in 2018. A complaint of bullying was levelled at Mrs Lynne Smith in late 2018 in correspondence to the caretaker forwarded to the committee

[11] That the work provided by AAA Goodfellas as Trading as First Class Cleaners has been the source of complaint by lot owners.

[12] It is either that actions of Archers (BCM) Gold Coast  or the committee members that were in correspondence with Archers (BCM) Gold Coast  in the preparation of the agenda and motions for the 2022 annual General Meeting of Somerset Gardens CTS 25221, or both, that  are responsible for the error that occurred.

[13]     No correspondence was attached to the minutes, noting previous motions that all committee members approved such correspondence, and no correspondence was received by the caretaker