Was it reasonable to send a breach to Report for Lot 13 when they allowed lot 17 to park in a exclusive use area?

There have been action by members of the committee,  in the voting on the parking in the exclusive use parking areas of Lot 12 and 13 and the subsequent issue of a breach notice from such,   that demonstrate serious breach of the code of conduct for some voting members of the committee and the body corporate manager.

The actions required from the committee in the event of these actions are:

1. Committee members identify themselves if 
   1. they voted for motion 10.2 in the committee meeting for the 20^th February 2023, or 
   1. they gave instruction for Archers to issue as section 182 breach notice to lot 13 and to charge the body corporate.
2. The committee should pass a motion to declare motion 10.2 void and redact the motion from the minutes
3. The committee should pass a motion that
   1. for the body corporate manager to send a latter to the owner of lot 13, at not cost to the body corporate, that stating

“The body corporate apologies that 

• motion 10.2 was passed at the committee on the 20^th February 2023 and was not a reflection of the attitude of the body corporate.
  • That you were issued a breach notice of a by-law by Archer’s AGM (Gold Coast) without authority of the committee and the this is not a reflection of the attitude of the body corporate and there is not assertion that you have breach any by-law.
• The committee should pass a motion that adheres to all section of section 37 of the BCCM (accommodation module) Regulations against any members who contravened their code of conduct 
• The committee should pass a motion that adheres to all section of section 142 of the BCCM (accommodation module) Regulations against Archer BCM (Gold Coast) for  contravened of their code of conduct 

History of the events.

The issues of parking in excusive use areas, were first raised at the committee meeting on the 20^th February 2023. However, there is doubt if it was an item  on the agenda . The agenda for committee meeting should meet the requirements of Section 49 of the BCCM (accommodation module) Regulations 2020.

Since as the motion indicted the committee was aware of at least motion 10.2 from the 7^th February, before the agenda was sent on notice of the meeting, given  7days before the meeting.

Reference from the minutes of the committee meeting of the 20^th February 2022

The knowledge of the By-Laws so inaccurate by the committee members and the body corporate manager. It appears that the motions were made without consulting the by-laws that are publicly displayed on the “hub” by Archer’s and it is proposed that it should have been a profession action of the body corporate manager to check the by-laws if the committee was considering a motion, under the code of conduct applicable.

Schedule 2A code of conduct for the Body Corporate Manager

To assert the actions considered on motions 10.1 and 10.2 were not in contravention of the By-Laws of Somerset Gardens, the by-laws are produced:

From these By-Laws above, any reasonable person reading them would see that by-law 1.1 has an exception for exclusive use area and by-law 1.3 has the words “other than” for exclusive use area. By-Law 36 give such exclusive use to lot 12,13 and 16. 

As the motion 10.2 notes the owner “were agreeable to the request”.

The reasonable action by the committee would have been:

• For motion 10.1 to indicate that parking of the camper van did not contravene any by-law
• For motion 10.2, indicate that parking of the trailer did no require the committee’s approval but the committee appreciates lot 17’s notifying the committee.

The process of dealing with the owner of lot 17 was remarkably and insensitive when dealing with the request.  The minutes of the meting of the 20^th February note

Such a request was not from the committee as there was not vote take to ask Faye Walker to leave the meeting. Any instruction cam from an individual, presumable the secretary as they noted it. 

If the applicable section of the section 55 of the Regulations should have been consulted at the time.  Section 55(6) may apply

As the owner of lot 17 had “sought permission to park”  , there was:

• No breach of the by-laws
• The committee was not starting procedure,
• There was not procedure against the body corporate,
• There was not a dispute between the body corporate and any party

Thus, the committee had no right to consider that the owner of lto 17  should be excluded and had no reason to meet (under section 55(7) to decide if the lot owner should be present.

If the committee had meet under section 55(7), which they did not,  they would have been in there right to ask the owner of lot 17 to not be present for that discussion and the vote. However, the result of that discussion, should have been reasonably that the owner of that lot 17 was able to be present for the item of business. 

The process was not followed and simply asking the owner of lot 77, one of the oldest members of the body corporate to leave was a malicious act

The committee passed a resolution “the committee liaise with the owner of lot 17”. This is not a function of the committee acting for the Body corporate, under Section 94 of BCCM Act

The committee, acting for the body corporate cannot, “liaise” the action the committee, acting for the body corporate can do are under Section 95 of BCCM Act

To fulfill that requirements of section 95(1)(a) the body corporate has a contract with Archer BCM (Gold Coast) Pty Ltd, the “body corporate manager” that allows it to, as noted in the Archer’s BCM (Gold Coast) Pty Ltd Agreement 14^th October2020

The charge that the body corporate manager can make are:

So Archers would charge the body corporate an hourly rate of $214 per hour to “liaise” with the owner of lot 17. 

This cost to the body corporate wsa not required.

The  member’s of the committee on the 20^th February were

Legislation  that present the code of conduct for voting committee members is Schedule 1A Code of conduct for committee voting members

The member of the committee voted on this motion 4 for the motion, 1 abstain and 1 no. The four committee member who voted for the motion had contravened the code of conduct. 

There is no requirement to record to record which  committee member votes for which motion. 

The caretaker put motions to the committee to be included in the agenda that would address this action.

The caretaker also request informal discussion with it’s concerns about the actions of some of the committee members at the 20^th February 2023 and it was indicted that such meeting would occur,  but was subsequently proposed and never happened. The caretaker raised a formal complaint with the committee on the 26^thFebruary 2023.

At the committee meeting on the 29^th February 2023, it was indicated that the owner of Lot 13 had been issued a “breach notice” of a by-laws.

It is noted that a committee can only make a decision under  Section 57 of the BCCM (accommodation module) Regulations 2020

There was no motion at the meeting on the 20^th February 2023, to get Archer to issue a notice under section 182.

There was also no motion outside a committee meeting, as required under  Section 60 of BCCM (accommodation module) Regulations 2020

Noting that committee members getting together and sending an email is not a vote outside of committee meeting, unless it is, under section 60(1) “called and conducted under this part”, which require that “advice of motion must be given at the same time to all lot owners”.

Such notice of motion was sent to the caretaker as a member of the committee, or to lot owners. 

No motions made were confirmed at the committee meeting at committee meeting on he 29^th  February 2023.

The caretaker has not seen the sect in 182 notice but such a notice could not have met the requirement of Section 182 BCCM Act, as the action did not contravene the by-law as indicted.

Archer’s would have charged the body corporate for that service,

The fact that 182 notice was issued raises concerns, that if the committee did not by section 57 or section 60 pass a motion resolving to issue a section 182 notice, who authorised Arche’s to send the notice to the owner of lot 13?

From minutes of the Committee meeting 8^th December 2021

This indicates that Lynne Smith is the only person that can give “formal instructions” to the body corporate manger.

If Lynne Smith is authorised the production of a 192 notice to lot 13 she did so without authority of the committee and is in contravention of the code of conduct as the actino was not in accordance with the Act

If Lynne Smith did instruct the body corporate manager, the  body corporate manager produced the notice without authority and was in contravention of the code of conduct as it acted unprofessionally and did not have a working knowledge of the Act.

Any member of the committee contravenes the code of conduct , under Section 37 BCCM (accommodation module) Regulation should have a notice 37 issued to them

The decision to issue that notice is not a decision for the committee, because, as noted in section 37(2) the decision has to be made by “ordinary resolution” of the body corporate and under Section 97 of the BCCM Act– “the body corporate can not delegate its power” and this is a “restricted issue “ for the committee under section 44 of the regulations 

Thus, if a members of a committee are presented with 

1. the provision of the code that has been breach and 
2. details sufficient to identify the breach,

those  member of the committee are nder an obligation, under section  4 of the code for voting committee members, that says:

To place a motion on the agenda of the next general meeting under section 76 of the BCCM Act to  issue a section 37 notice to Lynne Smith and other any other committee member who 

1. voted in for the motion 10.2 in the meeting of the 20^th February 2023, or 
2. gave instruction to the body corporate manager to issue a section 182 to lot 13.