Question: My roof has been leaking for 7 months. While the body corporate says they will fix the leak, nothing has been done. How do we move this along?
My townhouse roof has had a leaking issue for 7 months. The body corporate said it’s the body corporate’s responsibility to fix the leaking roof and they will be address the issue, however, the issue keeps rolling from one committee meeting to another and the defect still has not been addressed.
Can I submit a claim on the body corporate insurance? Will this be a simple or lengthy process?
Answer: Send a letter to the body corporate to put them on notice that if repairs are not completed by a specified date you would consider the body corporate negligent.
From description, this is a building maintenance issue and the body corporate should take care of it. What can you do if they are not?
Firstly, I would send a letter to the body corporate to put them on notice that if repairs are not completed by a specified date you would consider the body corporate negligent and responsible for any costs you may incur including legal fees to have the matter rectified and replacement costs for any damage to your property. This will establish the terms of discussion. You can ask for the letter to be included in the next committee meeting as correspondence.
After that, you can submit an owner’s motion to the Committee either asking for the repair to be done or with a quote to be approved. The Committee would have to consider this within six weeks. You could also submit a motion for all owners to vote on the matter at the next general meeting – you might need to look at the timeline of when this will be. You can also make an application to the Commissioner’s office to require the body corporate to undertake the works and if the matter goes far enough, they can require the body corporate to undertake the works.
All of these methods can take some time and it can be frustrating while the works are incomplete, but they are the legal pathways available. If the matter is serious enough, and you want assistance to get resolution you could engage a strata solicitor to assist you.
Essentially, you have to underline for the body corporate that it has a responsibility to maintain the common property and that you are willing to act if they do not adhere to this obligation. You shouldn’t really have to do this, but sometime it is necessary.
In terms of insurance, every owner is entitled to make a claim against the body corporate policy – owners pay into it after all. Your body corporate manager should provide you with a claims form or you can get one directly from the broker for the scheme.
If you speak to the broker they will probably be able to advise you if the claim is reasonable or not applicable under the policy. If the problem with the roof is just general wear and tear, it probably won’t be covered in the same way that your car insurer doesn’t cover wear and tear issues with your car. If you don’t have one you should be able to get a copy of the policy disclosure statement from your body corporate manager or online. Maybe it is on your scheme’s portal site and you can access it there.
How long will the claims process take? It will depend on a range of factors starting with how complicated the claim is. Then there are factors such as how busy the brokers and insurers are – pretty busy this year as there have been a higher than usual number of claims due to all the storm activity. To make the claim go faster provide as much clear, detailed information as you can when making your submission so that a definitive answer can be provided.
Committees are appointed to help manage the affairs of the body corporate without needing to refer every decision to the wider group of owners.
It’s within the Committee’s power to authorise improvements to the common property via a Committee resolution. The cost limit for these improvements is $200 times the number of lots per scheme. That limit can be extended to $300 if approved at a previously general meeting. So, if you have a 20 lot scheme with the standard cost limit, the Committee can approve costs of up to $4000 inc GST. The question doesn’t state the costs involved, but provided the works are within that limit it appears that the Committee has acted within the limits of its authority.
If there is a fault here, it seems that owners weren’t advised in advance that the improvement proposal was being considered. Ideally, you should have received notification that either a Committee Meeting or VOC was taking place. As you have received minutes, it seems there was such a meeting. You could reasonably contact the Committee or body corporate manager to ask whether such a notice was issued and if not why not. You might also ask what you would have done if you had received such a notice. You could have filed an objection to the works, but ultimately the vote would still have been in the hands of the Committee members.
Moving forward you seem to have a keen interest in the management of your building. If you want to play an active part in Committee decision making the best way to be part of this is to volunteer to be a committee member at the next opportunity.
Committee’s must put into effect the lawful decisions of the Body Corporate. If the resolutions were to engage given contractors, the committee appointed other contractors and there was no amending or revoking motion passed at a subsequent general meeting, then this committee has a problem!
When acting in good faith and without negligence, committee members are immune from civil liability.
Choosing a different contractor out of ignorance, arrogance or stupidity, is not necessarily negligent or acting in bad faith. Something more may well be required; for example a kick back, or if the choice of new contractors was ‘jobs for the boys’.
Even if one of those sorts of bad behaviour was present, committee’s in this situation will often reach for ratification.
That is, at a general meeting they will propose motions to authorise their engagement of the different contractors, and a committee that knows what it is doing, will also seek to revoke the earlier resolutions engaging the original contractors. Ratification gets the committee members off the hook, even though that would not be in the best interests of the Body Corporate.
Where to start can be tricky. At one end of the spectrum a discreet investigation, followed by adjudication is a viable alternative. At the other end of the range of options, is a frontal assault in the form of a requisitioned EGM, to effect a coup d’état replacing the committee, followed by a forensic audit of the material, experts reports and an action for breach of statutory duty (best done in the District Court, if possible).
The caretaker was approach in April 2022 from the owner of Lot 27.
We sought clarification from the body corporate representative
the body corporate representative response, was to send a private emails between the owner of lot 27 and lot 42 , that has been sent to her. There is not indication that Mr Wurth was giving advice from the committee. There was not evidence that any consultation was made with the body corporate manager or any legal advice.the body corporate representative gives recommendation on the advice from Mr Wurth and her belief that it has “happened in the past”.
Then on the 5th May the secretary sent an email
Then the treasure followed with an email on the same day
And on the following day, from another lot owner who was friends with Ora and Lynen, to the extend that she put in motions to support the body corporate representative in her dispute with the chair person.
Then a few days later another request was made from a committee member
At the committee meeting on the 11th May 202, the caretaker report the advice of Lynne Smith but is was mispresented in the minutes as being her advice that she denies was the statement she made.
Noting that this was the only meeting netween the AGM of 2021 and 2022 that the caretaker was allowed to attend.
The caretaker believes that less than 10 people requested screen
I now need to extend that dispute under section 227(1)(h) of the BCCM Act 1997, with the committee of the Body Corporate of Somerset Gardens CTS 2522.
1. From the committee meeting of the 20th February 2023:
a. motion 1.2 was not a reasonable decision to change the minuted of a meeting that had been resolved as true and correct to add owners motions that were not discussed at the meeting of the 24th August 2022, at which there is an audio recording. Especially, when the actions of the secretary with regard these minutes is in dispute with the commissioner.
b. Motion 2.1 was not required under by-law 12.1 as that by-law applies to signs or similar and by-law 4.1 (b) does not prevent owners from install any screen.
c. Motion 2.3 was not appropriate as the caretaker has record of the fact that they did not suggest that “no information to provide”. Also the motion related to unauthorised improvements that the secretary has on her lot. It was unreasonable to remove the item from the agenda.
d. Motion 2.15 is not a function of the body corporate under section 94 and was not covered in the caretakers report.
e. Motion 2.16. The decision was unreasonable not having an unbiased “audit” of the fences before electing to do a part of the fence that backed onto the lot of a committee member.
f. Motion 3.2 was not made in accordance with the Act
g. Motion 3.3 was not made in accordance with the Act, as the by-law have no requirement with regard to audio recording and the this is not a function of the committee under the Act.
h. Motion 4.1 was a request for a motion to be considered under section 50 as not treated as required under the Regulations.
i. Motion 4.2 was a request for a motion to be considered under section 50 as not treated as required under the Regulations.
j. Motion 10.2 was not required as lot 12 has an exclusive right that is an exception under by-law 1.1(b)
k. Motion 11.1 was was not reasonable as the Body Corporate Manager contract finished before the proposed date of the AGM.
2. On the 23rd February 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 62 was not made by way of a vote from the committee under section 57 or 60.
3. On the 21st April 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 54 was not made by way of a vote from the committee under section 57 or 60.
4. On the 26th February 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 85 was not made by way of a vote from the committee under section 57 or 60 and it was inappropriate to advice the lot owner to take actions that would give a right to common property to a lot owner.
5. On the 27st April 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 48 was (a) not made by way of a vote from the committee under section 57 or 60. (b) not required under by-law 20 as it was not a structural alteration to the interior of a lot.
6. On the 2nd May 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 91 was (a) not made by way of a vote from the committee under section 57 or 60. (b) not required under by-law 20 or by-law 4.
7. On the 5th May 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 20 was (a) not made by way of a vote from the committee under section 57 or 60. (b) not required under by-law 20 or by-law 4.
8. On the 6th May 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 85 was (a) not made by way of a vote from the committee under section 57 or 60. (b) the decision was a restricted issue of the committee as it assigned right to lot 85 for common property and the authority should not have been made under section 177(2)(c) as the gate would have cause a contention of by-law 3.
9. On the 6th May 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 36 was (a) not made by way of a vote from the committee under section 57 or 60.
10.On the 7th June 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 90 was (a) not made by way of a vote from the committee under section 57 or 60.
11.On the 7th June 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 35 was (a) not made by way of a vote from the committee under section 57 or 60. (b) the decision was a restricted issue of the committee as it assigned right to lot 35 for common property and the authority should not have been made under section 177(2)(c) as the deck would have cause a contention of by-law 11.1(e)
12.The committee was given all requirements to act under section 183 of the Regulation in relation to lot 45 but failed to enforce the by-laws under section 94(1)(b)
13.From the committee meeting of the 29th May 2023:
a. There is not requirement under section 63 to indicate which motion comes from which committee member and the labelling is not applied to other committee members
b. Motion 1.2 was not made by way of a VOCM under section 60 and should not been confirmed
c. Motion 1.3 was not made by way of a VOCM under section 60 and should not been confirmed
d. Motion 2.3 was not a function of the caretaker under the agreement and was nor a reasonable decision.
e. Motion 2.5 was not a function of the committee ti delegate a function to the caretaker under section 97.
f. Motion 2.3 was not a function of the caretaker under the agreement and was nor a reasonable decision
g. Motion 2.11.2 was an reasonable decision for transparency for the body corporate.
h. Motion 3 was an reasonable decision for transparency for the body corporate as it is not a function of the body corporate under section 94 of the Act.
i. Motion 3.1 was not a function of the caretaker under the agreement and was nor a reasonable decision
j. Motion 3.2 was not a function the committee as not by-law authority is required.
k. Motion 4 is not a truthful representation as audio indicates that no correspondence was read.
l. Motion 5.1 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
m. Motion 5.2 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
n. Motion 5.3 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision. Also no communication for email approval was sent to the caretaker and not application sent to the caretaker.
o. Motion 5.4 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
p. Motion 5.5 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
q. Motion 5.6 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
r. Motion 5.7 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
s. Motion 5.8 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
t. Motion 6.1 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
u. Motion 6.2 was not a function of the committee as there is not option under the Act or regulations to “ratify” an approval that was not made by vote of the committee. A new application should have been considered and aspect presented to the committee for reasonable decision.
v. Motion 6.4 was not a function of the caretaker under the agreement the Act and was nor a reasonable decision as transparency was required to the body corporate.
w. Motion 7.2 is not a truthful representation as audio indicates that no aged balance was tabled
x. Motion 9.1 is not a truthful representation as audio indicates that no register were tabled no alteration registered, as required under 217 of the Regulations
y. Motion 10.2 was not a function of the caretaker under the agreement and was nor a reasonable decision
z. Motion 10.3 was not on the agenda and was taken off the agenda on the 20thFebruary 2023
aa. Motion 10.4 was not discussed in the meeting and is delegating an authority to the caretaker that is not a function of the caretaker and is not allowed under section 97 and the committee should have acted under section 94(1)(b)
bb. Motion 10.4 was not a motion of the caretaker but a motion of the Chair
cc. Motion 10.7 was not a function of the caretaker and is an unreasonable decision
dd. The tabling of documents give privates to committee members before the meeting is not a requirement of the Act.
14.The minutes distributed by Archers on the 19th June 2023 The minutes do not meet the requirement of section 63 as audio of the meeting show that
i. some motions are not accurate recordings of the motions passed
ii. some motions passed are not recorded
iii. motions that were not passed are recorded in the minutes
15.On the 14th June 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 82 was (a) not made by way of a vote from the committee under section 57 or 60. (b) authority should not have been made under section 177(2)(a) as the installed value was greater than $3000 and required an ordinary resolution of the body corporate.
16.On the 23rd February 2023 Lynne Smith gave instruction to the body corporate manager that was that was not by way of a vote of the committee as required by the resolution of the committee on the 8th December 2021 and the decision to approve the application of lot 69 was not made by way of a vote from the committee under section 57 or 60.
17.Between the 29th May 2023 to 30th June 2023 the secretary was not acting in accordance with her code of conduct in not giving notice under section 60 to have a VOCM to call an EGM to authorise the spending on roof repairs.
18.On multiple dates between the 29th May 2023 to 30th June 2023 contacted the caretaker without the authority from the committee by vote making instructions contrary to section 14.1 of the caretaker agreement and section 57 and 60 of the Regulations.
I am informing the committee that I have a dispute, as defined under section 227(1)(b) of the BCCM Act 1997, with the Body Corporate of Somerset Gardens CTS 2522.
I would like to try to resolve the dispute by internal dispute resolution in accordance with section 238(1((b) of the of the BCCM Act 1997.
I am aware of practice direction 23 of the Office of the commissioner for Body Corporate and Community Management, that states:
“The obligation to attempt internal dispute resolution is consistent with the legislative responsibility for self- management as an essential aspect of living in a community titles scheme.”
I am also aware that the committee and thus the body corporate has been made aware of this direction , that was made in 2016, when I raised a dispute in 2028.
It is disturbing that the direction states that:
“Bodies caproate are encouraged to establish internal resolution procedures to assist resolving dispute within the scheme
yet the committee the committee has not place on the agenda of any AGM since 2018 motions to approved the internal dispute process by ordinary resolution.
Equally disturbing is that fact that request for internal resolution present to the committee have been declined, by individuals of the committee before resolution were passed at the 29th November 2022 committee meeting.
Consequently, I request that the resolve by vote outside committee meeting to have at least one committee member meet with me in an informal meeting to seek medication to resolve the dispute and the committee can enact action by way of a further vote outside of committee meeting and at the next General Meeting.
I believe that the committee would not be acting reasonably in making a decision to refuse such a request , and would be in contravention of section 100(5) of the BCCM Act.
Additionally, I believe that any committee member who were to vote for against a resolution to meet with me to facilitate internal dispute resolution, would be acting contrary to section 4 of the code of conduct contained in schedule 1A of the BCCM Act. As such any such committee member would be contravention of section 101B(2) of the BCCM Act and should be subject the action under 101B(3) of the BCCM Act.
I also believe that is a requirement of any other committee member under section 4 of the code of conduct contained in schedule 1A of the BCCM Act, to initiate action under section 37 of the BCCM (accommodation module) regulations if they become aware of a committee member contravening the code of conduct.
The history of this dispute is:
In 2020 I sent to the body corporate representative, as the caretaker, to allow information to be passed to the committee.
At no time was I as a lot owner communicating with the body corporate and my communication was never to the secretary of the committee.
I had a reasonable expectation that, due to the confidential information of the document concerning my husbands mental health deterioration, that the information should remain private and was only given to support my claim that my husband was not going to be involved in the operation of the caretaker.
My husband’s illness, had been related to events in his life and were acutely reactivated by events that occurred on the 3rd of December 2020 and soon after.
On that day my husband alleges that he was assaulted by Ora Whaanga when he presented to act as the nominee of the caretaker at the committee meeting.
My husband, and later myself were excluded from a meeting of the committee that we were nominees of by virtue of the legislation.
I will mention that individual use a clause in out caretaking contract that applied to attending for meeting with the body corporate wot discuss the actions of the caretaker. That clause gave authority, reasonably, to the body corporate, that the caretaker had to attend such a meeting. It did not apply to the legislative role as a non-voting member on the committee.
My husband made a statement to the police about the incident and wanted to arise a dispute with the commissioner.
Soon after I was received from the individual that held the communication out to be from the committee, but I subsequently became aware that the committee made no decision by resolution. The request was for myself to remove my husband as the nominee of the company. I took legal advice and the position was that I was note required to take that action.
I persuaded my not to taking further action with the police or the commission, in my desire to have harmony with the committee.
I asked my husband to remove himself from any role with the caretaker. Than decided that the only way to fully appease the committee member was of my husband also physically removed himself from my life for a period of time.
I took that decision due to (1) my limited experience at the time in the caretaker role, (2) my aversion to conflict and (3) a desire to appease individuals on the committee.
I then asked my husband to make a statutory declaration of his assertion to He did such and it was very hones. He gave the statement to me and it was my and his expectation that it would remain private and not be made public. It was only disclosed an individual to provide a “proof” to appease those members of the committee that would not take my word for my husband’s removal from any role with the caretaker.
I made the difficult decisions I did based on that It was asserted to me that my husband was a disruptive force.
However, I now see that, though I was told at the time, but choose not to believe, that my husband was only trying to identified to other behaviours of individuals. Those individuals were contravening the code of conduct and not acting n the best interest of the body corporate.
I have since seen the vitriolic action of those individuals towards other members of the body corporate. Those action were done when the member of the body corporate challenged the behaviour of those individuals. I have witnessed the behaviour continue and cause problems for the body corporate.
I had hope that rationality and informal request to comply with the Act and Regulation and to abide with the code of conduct would have been enough to change the behaviour of people. Alas I was mistaken.
I now know that husband’s actions were justified. I am now sadly realise that my actions. I see now that I was as much responsible for my husband’s health issues as were those of the members of the committee . I now deeply regret my action at the time, that this has contributed to my own health issues.
Over time my husband has done a lot to recover. He has faced other challenges but has got thought hem. He has assisted me with guidance and support as needed
As the situation on the committee has worsened and it has affected my own health even more. This lead to me have had to call on his assistance when my request for an informal meeting with the committee were initially agreed to then withdrawn and not followed up.
My husband planned to attend the committee meeting on the 29th May 2023 as the representative of the caretaker.
On the day, the body corporate manager contacted me and informed me that the committee had the document that I expected was to be kept private.
I was devastated, made even worse by the incorrect information given to me by the body corporate manager.
My husband had to attend and I appointed another person a nominee to assist my husband if the stress got too much for him.
I ask my husband to make another statutory declaration that has was capable to act as the nominee, ne complied.
To attempt to have a civil interaction at the meeting. My husband gave a polite printed message to each committee member, before the meeting, so not as have the document as a body corporate record. That document asked for understanding of what bullying was and to respect his recovering health issues in discussion.
The message was disrespected in the meeting.
I have been told from people present at the Ora Whaanga, as chairperson had no understanding of reasonable meeting procedure and openly belittled my husband and attacked his character and ability. I have heard the audio of the meeting I was deeply disturbed at what transpired. Even more so in the comment made by “Jayson” from Archer’s. The comments by Ora Whaanga, would not have been made by reasonable people that unless they sought to cause harm to another person.
At the conclusion of the meeting, Ora Whaanga, sought to table the document that my husband gave to individual not the committee as a part of the body corporate record. Such an action is against the code of conduct as it it not fair or honest.
Then on the Wednesday, I as caretaker, I received communication from the body corporate manager, making a request for the statutory declaration to be part of the body corporate records. I note on the audio of the meeting Lynne Smith is openly aggressive and bullying to my husband and this is not the first time as he complained about her behaviour in 2020 and we had to bring it to the attention of the committee.
Lynne Smith only person who can instruct
The actions of the Lynne Smith are unreasonable as it is not in accordance with the caretakers agreement and she had no authority from a resolution of the committee to instruct us to do any action.
The dispute that I have is:
The body corporate has placed into the body corporate records a document that were presented to individual committee members to prove assertion made by me as a lot owner with regard my husband Les Blackstock in December 2020.
That document was never sent as communication to the body corporate and was never record as correspondence at any subsequent committee meeting.
I had a reasonable expectation, due to the sensitive nature of the document, that the document would be viewed and then either destroyed or returned to myself.
It is a contravention of point 2(1) of the code of conduct of the voting member who instructed the body corporate manager to place the document in the body corporate records.
It is a contravention of point 2(1) of the code of conduct of the body corporate manager to place the document in the body corporate records.
The chairperson after concluding the committee meeting on the 29th May 2023, tabled a document, handed by Les Blackstock to individual committee member before the committee meeting started, and instructed the body corporate manager to be included in the body corporate records .
The action of the chairperson was not accordance with the section 220(1) of the BCCM (accommodation module) Regulations 2020.
The document was not correspondence with the body corporate and was not discussed or tabled at the meeting, and it thus not a document that is a rerecord that must be kept by the body corporate.
The body corporate has not complied with section 46, 47 and 49 of the BCCM (accommodation module) Regulation 2020 in relation to the notice and agenda of the committee meeting of the 29th May 2023 and the meeting of the committee on the 29th May 2023 should be void for irregularity.
Various motions made by the committee at the meeting in the 29th May 2023 were made in contravention to section 100(5) of the BCCM Act and those resolutions should be at all times void.
The behaviour of the chairperson at the meeting was in contradiction of the code of conduct in relation to section 1, 2(1) and 3.
Either the body corporate manager or a committee member, release that document to Ora Whaanga in her capacity as chairperson, that should have been recognised as not related to the body corporates functions under section 94 or the BCCM Act
Ora Whaanga used that document to make a derogatory statement to my husband in the committee meeting of 29th May 2023, that were universally received as being inappropriate and were made only with the aimed of causing harm to my husband.
The behaviour of the treasurer at the meeting was in contradiction of the code of conduct in relation to section 1, 2(1) and 3.
The actions I seek to resolve this dispute are that the committee resolve, by way of VOCM under section 60 of the BCCM Regulations, to
Place section 37 notice on the agenda of the next committee meeting as my communication has shown details sufficient to identify the breach of provision 2 of the code of conduct for Lynne Smith and Ora Whaanga,
Place section 142 notice on the agenda of the next committee meeting as my communication has shown details sufficient to identify the breach of provision 2 of the code of conduct for Archer’s.
Resolve to remove from the body corporate record the documents:
Statutory declaration Les Blackstock
Information on Bullying tender in the meeting on the 29th May 2023 by Ora Whaanga.
Resolve to remove Lynne Smith as the body corporate representative to the caretaker.
Archer BCM (Gold Coast) should act to comply the code of conduct in the Act, particularly in
points 1 “must have a good working knowledge and understand of the Act”,
point 2(1) “must act honestly, fairly and professionally in performing the functions under the person engagement”
point 2(2) “ must not attempt to unfairly influence the outcome of an election of the body corporate”
point 3 “must exercise reasonable skill, care and diligence in performing the person functions under the engagement”
point 4 “must act in the best interest of the body corporate.”
Point 5 “ must keep the body corporate informed of any significant development or issues about an activity performed for the body corporate”
Point 6 “must take reasonable steps to ensure employees of the person complies with this Act.”
Point 7 “must not engage in fraudulent of mislead conduct in performing the person functions under the engagement”
Point 8 “mist not engage in unconscionable conduct in performing the person function under the engagement”
– requiring the body corporate to comply with condition that are not reasonable necessary.
Exerted unfair tactic against the body corporate and a lot owner.
The engagement requires agreed secretarial service to be undertaken. Among the agreed service are:
Attending the annual General Meeting
Preparing and distribution the notice of the AGM and ancillary documentation for statutory motions
Prepare ta distribute notice of committee meetings
Attend committee meetings
Records and distribute and file minutes of the committee meetings
During the provision of these service Archers representatives are required “at all time comply with the Act, regulations and code of conduct”.
While attending the General Meeting and Committee Meeting the code of conduct requires to have a good working knowledge and understand of the act relative to their functions under the engagement, to act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
My proposition is that while, the agreed service do not specifically include giving advice to the executive of the body corporate committee, the code of conduct is such that such advice should be given to ensure the committee’s action are in keeping with the Act and Regulations in the performance of the meeting that the body corporate manager is attending as that is an expected term of the contract.
My complaint is that representatives of Archer BCM (Gold Coast) failed to comply the code of conduct in the Act. This failure caused serious and significant damages to both the body corporate and individual lot owners.
It is my belief that the behaviour of Archer BCM (Gold Coast) contravenes the code of conduct of Strata Community Association
I note that a letter sent to the caretaker after internal dispute resolution on the 6th September 2018 the committee:
“ agreed that all future decision made by the committee will comply with the legislation and be conducted at a committee meeting of by way of a vote outside of committee”
This document should be part of the body corporate records and should have been know by the body corporate manager.
The failure to comply the code of conduct in the Act with the:
Behaviour of Jason Boatswain at the committee meeting of 3rd December 2020
Behaviour of Jason Boatswain in publishing the minutes of the meeting of 3rd December 2020
Behaviour of Jason Boatswain at the committee meeting of 10th February 2021
Behaviour of Jason Boatswain at the committee meeting of 21st May 2021
Behaviour of Jason Boatswain at the committee meeting of 25th August 2021
Behaviour of Jason Boatswain at the committee meeting of 8th December 2021
Behaviour of Jason Boatswain at the committee meeting of 24th January 2022
Behaviour of Jason Boatswain at the committee meeting of 11th May 2022
Behaviour of David Bourke at the committee meeting of 24th August 2022
Behaviour of David Bourke in publishing the minutes of the committee meeting of 24th August 2022
The behaviour of Behaviour of David Bourke between the committee meeting on the 24th August 2022 and the general meeting of 26th October 2022
Behaviour of David Bourke at the general meeting of 26th October 2022
Behaviour of David Bourke at after the AGM till the committee meeting of 28th November 2022
Behaviour of David Bourke at the committee meeting of 28th November 2022
Behaviour of Lesley McLaughlin at the committee meeting of 20th February 2022
Behaviour of Lesley McLaughlin in publishing the minutes of the committee meeting of 20th February 2022.
Behaviour of Lesley McLaughlin in communications with owner of lot 77
Behaviour of Lesley McLaughlin in communications with owner of lot 1
Behaviour of Lesley McLaughlin in communications to the caretaker on the 29th May 2023, verbally and in emails.
Behaviour of Lesley McLaughlin at the committee meeting of 29th May 2022
Behaviour of Jason Boatswain at the committee meeting of 29th May 2022
Behaviour of Lesley McLaughlin in communications with owner of lot 1
of 30th May 2022
The specifics from the events that give will give rise to “details sufficient to identify either:
the misconduct that happened,
the duties that have not been carried out and
the facts that show provision of the code of conduct have been contravened and
the regulations to the Act that have been contravened,
to satisfy the requirements of section 142(4)(b)(2) to provide a written remedial action notice under section 142(3)(a) are as follows, for the particular
The evidence that support my complaint are given as screen shots to allow you to see without having to move to attachments in annexes. This increased the length on the document, but I feel it make it more understandable. I obvious have all the documents and in any formal situation can produce them.
I reference the BCCM Act of 1997 as “the Act” and the BCCM (accommodation module) Regulations 2020 as “the Regulations” and will provide the appropriate section with highlighting of relevant part of any regulations or legislation as required, to save you time having to look up the Act or Regulations.
These are the specifics of the events,
Behaviour of Jason Boatswain at the committee meeting of 3rd December 2020
The chairman will state under oath that he was given the advice in the minunte by Jason Boatswain and that advice is incorrect at both points. The clause in the caretakers contract is about meetings between the caretaker and the body corporate to discuss performance is a sperate matter to the attendance at committee meetings are a non voting member of the committee.
At the committee meeting of the 29th May 2023, Mr Jason Boatswain confirm that a nominee is a non voting member of the committee, meaning his advice of the 3rd December 2020 did not show a god working knowledge of the Act and was not him acting fairly or honestly.
Mr Jason Boatswain should have advised the committee that passing motion to reduce the spending limit from $200o to $500, which as the source of previous complaint and had been elevated to $2000 by subsequent committee was an unreasonable and unfair action, as the caretaker was not at the meeting and there is no discussion on the mater.
Also Mr Jason Boatswain the motion on the Body Corporate Representative is a delegation to the powers of the body corporate to one person and is contrary to section 94 of the Act.
In not providing the advice to the committee Mr Jason Boatswain did not have good working knowledge and understand of the act. Did not act honestly, fairly and professionally, nor exercised reasonable skill care and diligence. Or acted in the best interest of the body corporate.
Mr Jason Boatswain should have advised the committee members that there action were contrary to their code of conduct.
Mr Jason Boatswain should have advised committee that to exclude the caretaker and to them raise such a motion, with actions that are not part of the caretaking agreement and were addressed in correspondence was not an action that was fair or honest.
Mr Jason Boatswain should have advised it is not a function to the committee to instruct the body corporate manager under section 94 to communicate with caretaker. Also that “a formal complaint” is not an action under the act. If the committee had details sufficient to issue a section142 notice it should have placed such a motion on the agenda of the next general meting. Such a motion was never actioned.
In allowing the above motion Mr Jason Boatswain did not have good working knowledge and understand of the act. Did not act honestly, fairly and professionally, nor exercised reasonable skill care and diligence. Nor acted in the best interest of the body corporate.
Behaviour of Jason Boatswain in publishing the minutes of the meeting of 3rd December 2020
The statement appeared in the minutes.
As Les Blackstock and subsequent Violet Blackstock were exclude from the committee meeting the statement is a false imputation on the reputation of Les Blackstock and the caretaker. This comment has defamatory imputations.
Jason Boatswain did not act honestly, fairly and professionally, exercising reasonable skill care and diligence in publishing these details or advising the committee not to publish these statements
Behaviour of Jason Boatswain at the committee meeting of 10th February 2021
Jason Boatswain did not send notice of the meeting to all committee members. Specially excluding the caretaker as a non voting member, but attended as a non voting member. This action demonstrates he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
Jason Boatswain in allowing the above motion the be resolved without the caretaker present at the meeting was an example of him not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
The above motion indicted a breach notice had been sent but between the meeting of the 3rd December to 10th February 2021 there had been no VOCM to issue such breach notice and no VOCM were confirmed at the meeting of the 10th February 2021.
This action by demonstrates he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
Jason Boatswain in allowing the above motion the be resolved without the caretaker present at the meeting was an example of him not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
The motion contained assertion that are false and misleading, and examination of minutes would have easily shown no such “direction from the committee”
Such a direction as resolved is not a function of the body corporate under section 94 of the Act and Jason Boatswain in allowing the above motion to be published with defamatory imputations is example of him not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
The motion concern a dispute with the commissioner but there is no indication that any votes were taken to allow non committee members to stay in the meeting.
Jason Boatswain in allowing the above motion the be resolved without committee voting on the attendance of a non committee member is an example of him not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
Behaviour of Jason Boatswain at the committee meeting of 21st May 2021
Jason Boatswain should have been aware of the following motions on the 15th November 2018 that:
“the Arborist Report & Tree Management Plan, by TPZ Project Arborist on the 17th May 2018 is to be accepted and that the caretaker will use this as the basis to Tree Management for Somerset Gardens over the next 10 year.”,
To allow a committee to remove a plan passed 3 years previous because it would cost money is not a reasonable action and should have made aware committee.
Jason Boatswain in allowing the above motion the be resolved at the meeting was an example of him not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
This is not an action of the body corporate under section 94 of the Act. This action by demonstrates he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
Behaviour of Jason Boatswain at the committee meeting of 25th August 2021
The above motion indicted waring letters and form 10 is. Breach notice for continuing breach. However, between the meeting of the 21st May 2021 to 25th August 2021 there had been no VOCM to issue any such warning letters not breach and no VOCM were confirmed at the meeting of the 25th August 2021.
Section 94 dictates how a body corporate should deal with enforcing the by-law and that is under section 183 in the case and there is no warning notice.
These action by demonstrates he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
The above is not an action of the Body Corporate and the action would have been under the Act to rectify the damage and take action for breach of By-Law.
This is an unreasonable motion.
Jason Boatswain in allowing the above motion the be resolved is an example of him not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
The above motion does not comply with section 72 of the Regulationst o authorise a member to call a meeting.
The above motion do not comply with section 83 of the regulations and when compared to the agenda that was produced for the 2021 AGM, the agenda could only have been prepared by
Archers without instruction
Committee members without the authority of a motion passed under section 57 of 60.
Particularly motions 8, 9 of the AGM of 2021 were not approved by the committee.
This action by Jason Boatswain demonstrates he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
This was the precedent that was set for the 2022 AGM that causes significant problems.
Behaviour of Jason Boatswain at the committee meeting of 8th December 2021
No VOCM were recorded between the meetings of 25th August 2021 and 8th December 2021.
Allowing this motion to be actioned by Jason Boatswain demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
This is a sensible advise given to the committee and brings into question that multiple times that advise is note recorded.
The action has been constantly not adhered to.
Behaviour of Jason Boatswain at the committee meeting of 24th January 2022
This is a breach of by-laws and should have been dealt with as such.
The issue is that the secretary has a large structure that was not approved by the body corporate no council and was allocated to deal with this issue is a conflict of interest.
This action by Jason Boatswain demonstrates he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
This is not an action of the body corporate under section 94 of the Act. Allowing this motion to be actioned by Jason Boatswain demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
The fact that these are not “application” is a misleading recoding of the minuntes when they are spending by the caretaker and others that are above the caretaker spend limits and were “approved” by members of the committee without action by way of vote outside of committee meeting.
No VOCM were recorded between the meetings of 8th December 2021.
and 24th January 2022.
Allowing this motion to be actioned by Jason Boatswain demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
Behaviour of Jason Boatswain at the committee meeting of 11th May 2022
The production of a “gardening plan” or “fence audit” by the committee is not an action of the body corporate under section 94 of the Act. Allowing this motion to be actioned by Jason Boatswain demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
This is not an action of the body corporate under section 94 of the Act. There is a misleading issue to the advice as no documentation was presented council.
Allowing this motion to be actioned by Jason Boatswain demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
The fact that these are not “application” is a misleading recoding of the minuntes when they are spending by the caretaker and others that are above the caretaker spend limits and were “approved” by members of the committee without action by way of vote outside of committee meeting.
No VOCM were recorded between the meetings of 24th January 2022 and 11th May 2022.
Allowing this motion to be actioned by Jason Boatswain demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
Behaviour of David Bourke at the committee meeting of 24th August 2022
David Bourke should have been aware that the quotes were below the spend limit of the committee and were not required to be put to the general meeting.
The quotes were discussed and tabled, but in subsequent notice from committee member the committee member did not have the quotes at a later date.
The caretaker asserts strongly, and it is recorded that she recommended the soft wash be undertaken
The actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
This motion had been on the agenda since January 2022 and the fact that a person who had the an unauthorised structure was not actioning the motion should have raised professional concern. Action should have been taken under secion 183.
The actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
This motion by the committee is not an action of the body corporate under section 94 of the Act. Allowing this motion to be actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
subsequently on the agenda
Motion 9 (9.1 and 9.2) vastly different to the motions suggested
Motions 10, 11, 12.1, 12.2, 13.1 13.2, 14. 15, 16, 17, 18, 19, 20, 21, 22 not on the agenda
David Bourke was requested to give John Wurth the motions from owner send to the body corporation and refused.
These were provided and showed they were present at the meeting but not tabled.
Noting that motions previous sent to a general meeting in 2018 assessed on legal advice and owner approached before the meeting and offer to abridge the motions.
Behaviour of David Bourke in publishing the minutes of the committee meeting of 24th August 2022
There is significant dispute about the minuting ting of this motion. The caretaker asserts strongly, and it is recorded that she recommended the soft wash be undertaken
David Bourke in allowing the above motion the published when it not passed as a motion would have influenced the election.
This action of David Bourke is an was an example that he did not have a good working knowledge and understand of the act relative to their functions under the engagement and not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
The behaviour of Behaviour of David Bourke between the committee meeting on the 24th August 2022 and the general meeting of 26th October 2022
Meeting held at
This does not comply with section 81 and 82 of the Regulations and made the AGM invalid. A VOCM should have been called to correct the dates.
Allowing this motion to be actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
This explanatory note was never the subject of a motion from the committee to be in the explanatory notes of the AGM so were published by
The last statement in the explanatory note is false and misleading. The committee had passed not motion to approved the quote of Frist Class Cleaners.
Allowing these notes to be published by David Bourke demonstrates shows that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
The inclusion of a committee explanation in the explanatory schedule that held notes for owners motions, contravenes section 80(6) and 80(7) of the Regulations.
Allowing these notes to be published by David Bourke demonstrates shows that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
As noted the voting papers state that motions are by the committee unless othersise stated and motion for the removal of the chairman are not idenetied as beign owners motions. The is contrary to section 78(5) of the Regulations.
The explanatory notes do not have the name submitters names
This action is contrary to section 80(2) of the Regulations.
Behaviour of David Bourke at the general meeting of 26th October 2022
David Bourke advised the people at the meeting inaccurately with regard section 88(3), i should have advice that the motion should have voted to reverse the ruling due to disagreeing with the ruling.
It would have also been professional to indicate that the opinion giving by the chairperson is accurate and reversing the decision would lead to a dispute that would not be in the best interest of the committee, acting for the body corporate.
This advice by David Bourke demonstrates shows that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
Behaviour of David Bourke at after the AGM till the committee meeting of 28th November 2022
This emails show the communication from David Bourke to Mr Wurth
Allowing this motion to be actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
Behaviour of David Bourke at the committee meeting of 28th November 2022
This motion by the committee is not an action of the body corporate under section 94 of the Act. Allowing this motion to be actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
This motion has a history related to unauthorised additions but the secretary and the caretaker indicated that no such correspondence was sent to them. If the correspondence was from the body corporate it should have been tabled as apart of the body corporate records. This did not occur.
David Bourke demonstrates shows that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
This motion by the committee is not an action of the body corporate under section 94 of the Act.
The notice is clearly identified as a dispute notice and the committee should have acted under practice direction 23.
Also some members of the committee acted before the meeting to correspond without authority.
Allowing this motion to be actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
This action is contrary to section 57 and 50 of the Regulations.
Allowing this motion to be actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
The above needs to be noted that this letter was send to Mr Wurth on the 25th November, 3 days before the meeting,
This motion by the committee is not an action of the body corporate under section 94 of the Act.
The notice is clearly identified as a dispute notice and the committee should have acted under practice direction 23.
Allowing this motion to be actioned by David Bourke demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
Despite the motion the notice of meeting was given at 7 days before the meeting of the 20th February 2023
Behaviour of Lesley McLaughlin at the committee meeting of 20th February 2022
This motion by the committee is not an action of the body corporate under section 94 of the Act. Allowing this motion to be actioned by Lesley McLaughlin demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
This motion by the committee is not an action of the body corporate under section 94 of the Act. Allowing this motion to be actioned by Lesley McLaughlin demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
This the motion that had been allocated to the secretary, who had an unapproved addition then she stops the motion. The caretaker advises that they did not make the statement. Allowing this motion to be actioned by Lesley McLaughlin demonstrates she did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
The motion, on the back of the damage to the roof that had been reported was an unreasonable decision. A subsequent audit found nearly $100,000 of work need on the rood, some urgently needed. This action by Lesley McLaughlin demonstrates her did not acting honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate.
Allowing this motion to be actioned by Lesley McLaughlin demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. The owner had presented a motion to the committee and the secretary choose to ignore it, and not act on it as per the section 50 of the Act.
The statement “it is unreasonable for lot owners to be involved in the interview process” is not fact from the is legislation. It demonstrates the lack of transparency desire by the body corporate manager.
Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
Allowing this motion to be actioned by Lesley McLaughlin demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement. The owner had presented a motion to the committee and the secretary choose to ignore it, and not act on it as per the section 50 of the Act. The resolution that “the secretary provide a formal response to the owner of lot 77 within the making period being 6 weeks from the receipt of the motion.”
The correct action of the motion is:
Allowing this motion to be actioned by Lesley McLaughlin demonstrates that he did not have a good working knowledge and understand of the act relative to their functions under the engagement
These motion are in accordance with the bylaws of somerset gardens, as lot 12 and 13 have exclude use parking and that is exclude from bylaw 1
This actioned by Lesley McLaughlin demonstrates she did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate to check the by-laws and advising the committee.
Behaviour of Lesley McLaughlin in communications with owner of lot 77
The communication was sent when there is no motion by the committee authorising the body corporate manager to send this communication to the owner of lot 1. The nominee to the body corporate, Lynne Smith, did not have authority to give that instruction under the motions of 8th December 2021. Thus the body corporate manager should not have sent this communication.
There was no motions from committee to make this statement to a lot owner between the 20th February till the date of this letter.. This statement had no authorirty as it can only come from individual owners.
Behaviour of Lesley McLaughlin in communications with owner of lot 1
The communication was sent when there is no motion by the committee authorising the body corporate manager to send this communication to the owner of lot 1. The nominee to the body corporate, Lynne Smith, did not have authority to give that instruction under the motions of 8th December 2021. Thus the body corporate manager should not have sent this communication.
There was no motions from committee to make this statement to a lot owner between the 20th February till the date of this letter.. This statement had no authorirty as it can only come from individual owners.
Behaviour of Lesley McLaughlin in communications to the caretaker on the 29th May 2023, verbally and in emails.
Behaviour of Lesley McLaughlin at the committee meeting of 29th May 2022
On multiple occasions had to confer with Jason to check if the assertion of the caretaker was correct in terms of the legislation.
This demonstrates that Lesley McLaughlin did not have a good working knowledge and understand of the act relative to their functions under the engagement.
Indicated that the caretaker report would cost over $450 to post to lot owners, but had to admit that if was sent with the minutes the cost would be nothing to the body corporate.
This demonstrates that Lesley McLaughlin did not have a good working knowledge and understand of the act relative to their functions under the engagement did not act fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate providing false and deceptive information to the meeting.
Behaviour of Jason Boatswain at the committee meeting of 29th May 2022
Said words to the effect “So you don’t want to work with the committee”
This action demonstrates Jason Boatswain did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
Gave an estimate that the body corporate would charge for exact time for a task as additional service, was later shown to be a false representation as Lesley McLaughlin indicated that charging was every 6 minutes (so you be charged for 12 minutes)
This action demonstrates Jason Boatswain did not act fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate providing false and deceptive information to the meeting.
Behaviour of Lesley McLaughlin in communications with owner of lot 1
of 30th May 2022
Sent email to caretaker at the email of the owner and stated that motions had to comply with s standard and the link was not for motions to a committee meeting (of which there is a guideline) but for motion to a general meeting. The response was in relation to the caretaker’s forwarding of motions to be put to the meeting as a member of the committee.
This demonstrates that Lesley McLaughlin did not have a good working knowledge and understand of the act relative to their functions under the engagement. Further this action demonstrates he did not act honestly, fairly and professionally, exercising reasonable skill care and diligence and act in the best interest of the body corporate
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
the behaviour of committee, and individuals on the committee, of Somerset Gardens CTS 25221 and
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)
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.
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:
The engagement authorisation as body corporate manager to Somerset Gardens CTS 25221
all emails or written correspondence from or to the body corporate between 24thAugust 2022 till 28th November 2022.
Final Orders
The Annual General Meeting of Somerset Gardens CTS 25221, held on the 26th October 2022, is void for irregularity.
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:
The appointment of executive and committee members
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
Redacting the minutes of the Annual General Meeting of issues relating to motions 11-20
Confirming under section 310 of the Body Corporate and Community Management Act 1997, transactions are valid and binding between the body corporate and:
Guardian Body Corporate with Audit Services
Longitude Underwriting with Policy LNG- STR- 20054099
AAA Goodfellas Trading as: First Class Cleaners Queensland with roof cleaning services
SAE Group supplying 6.6kw with installation of solar panels to the roof of lot 74
Pango Holdings Pty Ltd ACN 622680568 with the caretaking and Letting Agreement
The issue of section 37 notices to Ora Whaanga and Mrs Lynne Smith,
The issue of a section 142 notice to Archer (BCM) Gold Coast
Giving directions to the committee to fix the irregularities made in historical decisions by previous committees
That Archers BCM ( Gold Coast ) comply with the terms of their engagement, including the code of conduct.
My comments for the Commissioner are:
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.
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.
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.
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.
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:
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.
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:
the irregularities in those motions being submitted to the meeting by individuals not the committee, and
those submitting the motions not acting reasonably, compared to previous actions in submitting motions.
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.
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.
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.
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 recordin 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.
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 ofCode 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 ofCode 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.”
Retain a surveyor to properly identify on the new exclusive use plans the area being occupied by owners
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.”
[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
The opinion is that the protections of 111A of the BCCM Act 1997 to the body corporate and the committee of Somerset Gardens against any action for defamation would NOT be available in this case. This is due to multiple errors made by Ora Whaanga (secretary) and the committee not acting reasonably.
Ora Whaanga (secretary) and Lynne Smith (treasurer) and possibly Danelle Jones (owner lot 13), as the lot owners who submitted the motions published, could have an action against them for defamation.
The advise is that,
for the protection of the body corporate, and the assets of the body corporate all actions be taken to find a resolution in the dispute between the body corporate and Mr Wurth over the publication of motions 11-22 on the voting papers and explanatory schedule with the notice to the AGM on the 26th October 2022 and the minutes of the AGM on the 26th October 2022.
For the protection of individual committee members at the committee meeting of 24th August 2022 all actions be taken to find a resolution in the dispute between the body corporate and Mr Wurth over the publication of motions 11-22 on the voting papers and explanatory schedule with the notice to the AGM on the 26th October 2022 and the minutes of the AGM on the 26th October 2022.
History
The notice of the general meeting on the 26th October 2022 had with it, an agenda, voting papers and an explanatory schedule was published by Archers (BCM) Gold Coast and sent to all lot owners. Even though these documents were published by the body corporate manager, the publishing was done so on behalf of the body corporate organised by the committee.
The minutes of the general meeting on the 26th October 2022, were published by Archers (BCM) Gold Coast and were sent to lot owners.
Legislative requirements.
The Body Corporate Community Management Act of 1997 applies to these actions and the methodology of action are outlined in Body Corporate Community Management (accommodation module) Regulation 2022
The preparation of the agenda for each general meeting is directed in section[1] 93(1) :
“The committee must prepare an agenda for each general meeting.”
The regulations are clear on how a committee makes a decision. A committee can only make a decision at a meeting, under section 57(1),
“This section states how motions are decided at a meeting of the committee.”
or by way of vote outside of committee meeting (VOCM), that require steps to be done under section 60(1) that states:
“A motion may be considered by the committee even though the motion is not decided at a meeting of the committee called and conducted under this part”.
The requirements of section 60 are
notice of the motion give to all committee members and
at the same time, advice of the motion, given to lot owners and
a motion voted on under this section must be confirmed at the next meeting of the committee held after the motion is voted on.
The agenda for the AGM, under section 83(2)(a)(iii), must include a motion submitted by a member of the body corporate, under section 76, and required that such motion to be included on the agenda.
If a motion is submitted under section 76, before the 31st July, it would be an open motion at the AGM and section 78(1). It gives the responsibly to the secretary to prepare the voting papers for such open motions. Section 80(1) requires a voting papers, to be accompanied by an explanatory schedule. Thus the secretary ahs responsibly to ensure the voting is accompanied by the explanatory schedule The explanatory schedule, is to contain any explanatory note given to the secretary, as stated in section 80(1)(a):
“the submitter of a motion (under section 76) stated in the voting paper gives the secretary an explanatory note about the motion, and the note is not longer than 300 words”.
To clarity, section 80(2)(b), indicates:
“the explanatory note in the form given by the motion’s submitter”
Therefore, even though the secretary has responsibility for preparing the voting paper, that have the explanatory schedule with it, the committee has the overall direction to prepared the agenda, which the voting papers are part of.
The BCCM Act 1997 gives protection to the body corporate and the committee for required material for a general meeting under section 111A of the BCCM Act 1997 that might have defamation material in it. The exact wording of section 111A of the BCCM Act 1997, is:
“(1) This section applies if—
(a) the committee for the body corporate for a community titles scheme publishes required material for a general meeting of the body corporate under the regulation module applying to the scheme; and
(b) the required material contains defamatory matter.
(2) Each of the following is not liable for defamation by the publication of the defamatory matter as mentioned in subsection (1)—
(a)the body corporate;
(b)the committee, or a member of the committee, other than a member of the committee who submitted the motion or explanatory note containing the defamatory matter.
The last part clarifies that if you submit a motion under section76 and it contains defamatory material, you have not protection under section 111A of the BCCM Act 1997.
What required material exactly is relavant, because only that material under the definition of “required material” enacts the protection of section 111A of the BCCM Act 1997.
Required material is defined in section 111A of the BCCM Act 1997, as:
“ any of the following required under the regulation module applying to the community titles scheme to be published for the general meeting—
(a) a motion submitted other than by or for the committee for the general meeting (section 76 of the regulations);
(b) the substance of a motion mentioned in paragraph (a);
(c) an explanatory note for a motion mentioned in paragraph (a) prepared by the submitter of the motion (section 80(1)(a)).
From the above it clarifies that a motion submitted by or for the committee have no protection from defamation under section 111A of the BCCM Act 1997,
So, to be required material,
the material can only be the substance of a motion submitted under section 76 of the regulations or an explanatory note give by the submitter of the section 76 motion, to the secretary, and
the publishing of the any material must occur under the regulations for the publication of notices, voting papers, explanatory schedule and minutes of general meetings.
From the above it this further clarifies that,
motions by the committee
chairman statements
committee reports
, commonly accompanying notice, agenda and minutes, are defined as required material and have no protection for the to the body corporate and the committee from defamation under section 111A of the BCCM Act 1997:
The regulations for the publication of notices, voting papers, explanatory schedule and minutes of general meetings, are sections 72 to 83, and 107.
If these regulation do not apply, the publication of any material would not be required.
When assessing the validity of any decision of the committee that enacts sections 72 to 83, and 107 you also have to consider section 100(5) of the BCCM Act 1997, that reads
“The committee must act reasonably in making a decision”
The body corporate records for the correspondence from Ora Whaanga (owner lot 21), Lynne Smith (owner lot 4) and Danelle Jones (owner lot 13) have been reported as showing the email were sent to the body corporate manager before the 31st July 2022.
If we accept motions 11-20 were made in response to section 76(5) and were given to the secretary before the end of the body corporate’s financial year immediately preceding the meeting. There are serious concerns around the decision to publish motions 11-20. These concerns are:
if the correspondence for a motion to be submitted was received before the 31st July 2022, why was it not raised as a correspondence in the agenda the committee meeting on 24th August 2022.
if the correspondence for a motion to be submitted was received before the 31st July 2022, why were the motions not submitted considered by the committee, under section 93(1) to allow the committee to prepare an agenda for the general meeting that was called..
The possibilities of what happened could be related to the:
the behaviour of the body corporate manager. If Archer (BCM) Gold Coast if they did not send the emails from Ora Whaanga (owner lot 21), Lynne Smith (owner lot 4) and Danelle Jones (owner lot 13) to the secretary before the 24th August 2022 committee meeting then Ora Whaanga would not have know to present the emails.
Emails sent from the body corporate manager to the committee would be in the body corporate records could be checked.
However, if Ora Whaanga was both the secretary and sender of some of the emails, then she should have reasonably been aware if the emails were not sent by the body corporate manager in time for the 24th August 2022 committee meeting. This make the possibility of the Archer (BCM) Gold Coast did not sending the emails to Ora Whaanga unlikely.
behaviour of the secretary Ora Whaanga , who sent some of the motions as a lot owner of 21. It could be suggested that actions not to declare the correspondence of consider the motions, is prompted by spite, or ill-will, against the character of Mr Wurth. The desire to not to make him and other members of the committee aware of the motions and present the opportunity to make a reasonable decision as a committee to not publish the motions.
The evidence that the behaviour of the Ora Whaanga, was promoted by spite, or ill-will, of is strengthened by her previous behaviour.
Ora Whaanga, was a member of the committee for somerset gardens at the committee meeting on the 15th August 2018. Though not in attendance at the meeting, she would have received the agenda for the meeting and she sent a proxy to the meeting. She would have received the minutes as the owner of lot 21.
Before the meeting on 15th August 2018, the committee received motions from an owner to be submitted to the annual general meeting. The committee arranged for Mr Peter Hunt and Ms Hayley Gath (lawyers from MHL Legal, the body corporates solicitors) to attend the meeting on 15th August 2018. The committee passed a resolution to amend the agenda to discuss the motions of the owner at the beginning of the meeting. The owner presenting the motions was asked to leave during discussion. The motion was passed by the committee with Whaanga’s proxy voting for the motion that:
“The strata manager inform the owner of lot of the advice of the solicitors and that her motions be ruled out of order on the day, however, that she is given the option to withdraw before the AGM and further the committee would like to discuss with her the items raised in her motions and a resolution to her concern obtained, Further that if the motions are put forward that the advice from MHL will be used to rule the motion out of order that they are invalid and the committee would write there own explanatory notes to reflect their ideas to the private owner motions”
This is evidence that Ora Whaanga, should have reasonably known of the reasonable requirements expected of the committee in a dealing with motions from a lot owner come, from her time on the same committee in 2018.
Further to add to evidence that Ora Whaanga, should have reasonably known of the reasonable requirements expected of the committee That committee, is that the same committee, via the body corporate manager, wrote to the lot owner on the 6th September 2018 and noted
the committee and the lot owners met for internal resolution of a complaint on the 4th September 2018 (which Ora Whaanga was in attendance at), and
the committee agreed in the letter:
“that all future decision made by the committee will coly with the legislation and conducted at a committee meeting or by way of Vote Outside of Committee.
The behaviour of Ora Whaanga, suggest that she was promoted by spite, or ill-will and the decision to publish motions 11-20 was hers and not a decision of the committee. As a consequence the publication of motions 11-20 was NOT required.
The issue is that Archers (BM) Gold Coast did publish publication of motions 11-20 on behalf of the body corporate. As such the protections of 111A of the BCCM Act 1997 to the body corporate and the committee would NOT be available.
Even Archers (BM) Gold Coast took instruction from more than one individual who was on the committee in the decision to publish motions 11-20. As moted, the regulations are clear on how a committee makes a decision. A committee can only make a decision at a meeting, under section 57(1), or by way of vote outside of committee meeting (VOCM), that require steps to be done under section 60(1), being a notice of the motion give to all committee members and at the same time, advice of the motion, given to lot owners and a motion voted on under this section must be confirmed at the next meeting of the committee held after the motion is voted on.
There is no evidence of the events above having occurred so there could be not valid decision of the committee expressed to Archers (BM) Gold Coast to publish the material.
The actions Archers (BM) Gold Coast may lessen the liability of the not eliminate liability to the body corporate and the committee for defamatory content being published.
Before moving to the issues with the calling and production agenda for the annual general meeting that happened in the meeting on 24th August 2022, we should consider that Ora Whaanga (secretary) and Lynne Smith (treasurer), they submitted to the general meeting under section 76 and held pivotal roles on the executive of the committee.
Section 101A of the BCCM Act 1997, allows that committee member is not civilly liable for an act done or omission made in good faith and without negligence in performing the person’s role as a committee member.
The actions of Ora Whaanga (secretary) and Lynne Smith (treasurer), can be held to be that their acts are NOT done in good faith. This is demonstrate by their motions submitted to the general meeting, and their actions as committee members to put the motions on the agenda and in voting papers, without proper process under the regulations,
Likewise, noting the previous actions Ora Whaanga (secretary) and Lynne Smith (treasurer), in 2018, their acts COULD BE FOUND to be negligent, because of advice that was given to them as previous committee.
The actions of Ora Whaanga (secretary) and Lynne Smith (treasurer may lessen the liability of the not eliminate liability to the body corporate and the committee for defamatory content being published.
There are also issues with the calling and production agenda for the annual general meeting that happened in the meeting on 24th August 2022,
the committee did not consider, under section 72(1), a resolution to authorise a member of the committee to call “the particular meeting”, but passed the motion below (as detailed in the minuted of the meeting)
Of note is that section 72(1) says:
“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.”
This resolution is to “call and convene” and does not authorised by resolution that a general meeting may be called a member of the committee”
Equally, concerning is, as can be seen it the minutes meeting on the 24th August 2022 the date chosen for the annual general meeting was the 12th October 2022 and the venue was King College.
The annual general meeting was held on the 26th October 2022 and the venue was Archers Gold Coast, Level 3, Southport Central Tower, 9 Lawson Street, Southport, a distance of 16 km from Somerset Gardens.
It is noted that there is no confirmation in the minutes of the next meeting of the committee on the 28th November 2022 (required under section 60(5)) of any VOCM held between the committee meeting on the 24th August 2022 and the notice being made for the AGM held on the 26th October 2022
to authorise a member of the committee to call “the particular meeting” on the 16th October 2022.
Notify the owners of the committee’s intention to hold the meeting at a stated place, mor than 15 km from the schedule land and allow the owners reasonable opportunity t object in writing to the proposed place by the stated date, under section 82((2)(a) of the regulations
The minutes of the committee meeting on 24th August 2022, reflect committee passed the following motion at the meeting on 24th August 2022,
The committee did not consider, under section 83(1), a motions to prepare an agenda for the general meeting that was called. The motion above, instructs the body corporate manager to prepare the agenda. However, the instructions are not consistent with section 83(2)(a)(iii) of the regulations, that require:
“the substance of the following motions—
(iii) a motion submitted under section 76 by a member of the body corporate and required to be included on the agenda, other than a motion stated on the agenda as an original motion under a group of same-issue motions;
With the non compliance of section 72(1) and section 83(2)(a)(iii) the calling of the general meeting and the production of the agenda would be invalid. As a consequence the publication of motions 11-20 was NOT required. Thus, the protections of 111A of the BCCM Act 1997 to the body corporate and the committee would NOT be available.
The final consideration is Section 100(5) of the BCCM Act 1997, requires that the committee must act reasonably in making a decision.
Even allowing for the non compliance with the regulations and the acts of at least Ora Whaanga, as secretary and possibly, Lynne Smith as an executive member of the committee, the action to publish motions 11-20 could be considered unreasonable because
Ora Whaanga (secretary) and Lynne Smith (treasurer) had a conflict of interest, in the motions they submitted and should have disclosed that to the committee and there is no evidence in the minutes of the committee meeting on the 24th August 2022 that occurred,
under the principals decided in the QCAT decision, Albrecht v Ainsworth & Ors [2015] QCA 220, there is no evidence in the minutes that the committee meeting of the 24th August 202, that the committee:
made a decision based upon a consideration of all relevant circumstances.
Made a consideration in an objective and fair manner of all the relevant facts and circumstances
Under the high court’s review of the decision in decision, Albrecht v Ainswortf, the decision, as any part of the committee, to publish the motions and explanatory notes, were prompted by spite, or ill-will, against the charact of Mr Wurth, demonstrated in the evidence of:
the past actions Ora Whaanga (secretary) and Lynne Smith (treasurer) towards Mr Wurth and
the wording and nature of the motions submitted by Ora Whaanga (secretary) and Lynne Smith (treasurer),
If the decision of the committee is unreasonable, the material and the publication was NOT required from an unreasonable decision. Thus, the protections of 111A of the BCCM Act 1997 to the body corporate and the committee would NOT be available.
[1] All the references to sections apply to section of the of the BCCM (accommodation module) Regulation 2022, unless stated otherwise.
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:
Committee members identify themselves if
they voted for motion 10.2 in the committee meeting for the 20th February 2023, or
they gave instruction for Archers to issue as section 182 breach notice to lot 13 and to charge the body corporate.
The committee should pass a motion to declare motion 10.2 void and redact the motion from the minutes
The committee should pass a motion that
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 20th 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 20th 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 7th 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 20th 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.
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 20th 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 14th 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 20th February were
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 20th 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 26thFebruary 2023.
At the committee meeting on the 29th February 2023, it was indicated that the owner of Lot 13 had been issued a “breach notice” of a by-laws.
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 29th 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 8th 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.
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
the provision of the code that has been breach and
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
voted in for the motion 10.2 in the meeting of the 20th February 2023, or
gave instruction to the body corporate manager to issue a section 182 to lot 13.
The provision of a service to inspect the inside of owners lots is not a function of the body corporate under section 94 and 152 of the Act, as the inspection is of an owners property not common property. The body corporate should not provide that service to lot owners.
The body corporate should inspect the body corporate asset the terminate barrier on the common property and it required “top it up” and maintain things that may affect the barrier.
Summary Section 163 of BCCM Act cannot be used to get access to a lot for the purpose of an inspection of the property to see if the effects of a lot owner’s actions have resulted in conditions that may attract pest.
The lot owner can be reminded of their obligation to maintain their lot and keep it in a clean and tidy condition and can utilise the service at a competitive price at the same time that the body corporate provide a check on the termite barrier. But that service should not be compulsory, or even if paid for by the body corporate.
An owner might be considered to have contributed to termite damage if [they] fail … to notify the body corporate of evidence of internal termite infestation. In the case of a non-resident owner, this requires that [they] ensure that internal inspections of the lot are undertaken on a regular basis … If there was evidence of termite damage to a lot over a sustained period of time which was not reported to the body corporate, I would have no hesitation in finding a form of contributory negligence on the part of the owner of [that] lot, and determining compensation accordingly.
(1) This section applies if the owner or occupier of a lot included in the scheme does not carry out work that the owner or occupier has an obligation to carry out under—
(a) a provision of the Act or this regulation, including a provision requiring an owner or occupier to maintain a lot included in the scheme; or (section 210 see below)
(c) the community management statement, including the by-laws; or
(2)The body corporate may carry out the work, and may recover the reasonable cost of carrying out the work from the owner of the lot as a debt.
Owner have an obligation not to
“ with support or shelter provided by the lot for another lot included in, or the common property for, the scheme.” (Section 165) and
“ either within or outside the lot, interfere, or permit interference, with utility infrastructure or utility services in a way that may affect the supply of utility services to another lot included in, or the common property for, the scheme.” (section 166)
The owner of a lot included in the scheme must maintain in good condition the utility infrastructure within the boundaries of the lot, and not part of common property, and, if the utility infrastructure is in need of replacement, must replace it.
Who’s responsible for preventing pests?
Working out who is responsible for pest prevention in a community titles scheme can sometimes be tricky. An adjudicator considered the issue in Pannorama [2011] QBCCMCmr 461, as it related to termites:
Owners are normally responsible for their own termite management when schemes are registered under a standard format plan, and the body corporate is normally responsible for termite management when schemes are registered under a building format plan.
However, the division of legislative responsibilities … mean[s] the individual configuration of schemes can affect this.
The division of legislative responsibilities that the adjudicator refers to are as follows:
an owner’s duties to maintain the following things in good condition:
their lot
any areas of common property over which their lot has exclusive use rights, excluding
common property utility infrastructure (e.g. plumbing and electrical wiring), and
any other things that the by-law establishing the exclusive use area identifies as the body corporate’s responsibility.
The body corporate’s duties include to maintain the following things in good condition:
common property
the following elements of building format plan lots:
railings, parapets and balustrades on (or for all intents and purposes on) the boundary of a lot and common property doors, windows and associated fittings in a boundary wall separating a lot from common property
roofing membranes that provide protection for lots or common property
The body corporate must also maintain the following elements of building format plan lots in a structurally sound condition:
foundation structures
roofing structures providing protection
essential supporting framework, including load-bearing walls
According to the adjudicator in Tea Tree Grove At Hendra [2010] QBCCMCmr 518, maintenance responsibilities extend beyond the rectification of damage, to include work that may be reasonably expected to minimise the need for future maintenance. Therefore, it includes a responsibility for reasonable pest prevention, as well as rectification of any damage caused by pests.
Who’s responsible for fixing damage caused by pests?
As you’ve seen, it can be difficult to work out who’s responsible for maintaining things that pests might damage, let alone who’s responsible for rectifying any damage caused by pests. Having said this, there are generally only three alternatives.
The party with the maintenance responsibility
The party that is responsible for the maintenance of the part of scheme land that has been damaged will generally be responsible for fixing it, where:
they could have prevented the damage by doing reasonable maintenance
no reasonable maintenance could have prevented the damage
reasonable maintenance was done by everyone with a responsibility to do it, but the damage occurred anyway
no-one else will repair the damage and it needs to be repaired to fulfil their maintenance responsibility.
(Note: this does not stop them pursuing another party for all or part of the costs.)
2. Another party
Another party may be held responsible for fixing damage caused by pests, where:
they failed to do something that they had a legal responsibility to do, and that failure directly caused the damage (e.g. an owner failed to take reasonable steps to maintain a tree on their lot, and termites from that tree ended up damaging common property—see: Tea Tree Grove At Hendra [2010] QBCCMCmr 518).
they intentionally did something that caused the damage (e.g. encouraging pigeons to roost in common areas by continually feeding them—see: Mosman Court [2005] QBCCMCmr 393).
3. More than one party
Where multiple parties have contributed to the damage caused—whether by failing to do something they had a responsibility to do, or by intentionally doing something—those parties may all be held responsible for fixing it. The proportion of their responsibility should be calculated by referring to the extent to which their actions caused the damage.
An owner might be considered to have contributed to termite damage if [they] fail … to notify the body corporate of evidence of internal termite infestation. In the case of a non-resident owner, this requires that [they] ensure that internal inspections of the lot are undertaken on a regular basis … If there was evidence of termite damage to a lot over a sustained period of time which was not reported to the body corporate, I would have no hesitation in finding a form of contributory negligence on the part of the owner of [that] lot, and determining compensation accordingly.
The commissioner perspective is that termite treatment is the realm of where is occurs[2]
Inside the lot the cost of the owner
From outside the cost of the body corporate
There have been adjudication decision that say if the body corporate maintain a barrier and an infestation occurs that cannot be linked to a breakdown of the barrier it is the owner responsibility[3]
The issue is explained in the following
Section 163 of BCCM Act
Gives authorisation of a person to enter must pass a test that “while it is reasonable necessary” to either
to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary
carry our the work, authorised or required to carry out is necessary
For an inspection to be “while it is reasonable necessary” the work the body corporate has to inspect for must be authorised or required to carry out is necessary. In terms of doing work if a lot owner does not maintatin 220(2) only say the body corporate ”may” carry out work, so that is not being “required”. For the work to be “authorised”it would have to be as a result of a motion and that involves if that motion wa a reaonable decision if there is not “evidence” that the owner has not maintained the lot.
The owner is required to maintain at lot in good condition, but what would be reasonable necessary to allow body corporate to inspect if the lot has been maintained?
Some evidence that the lack of maintenance is causing a problem, like water leaking out and a professional stating that in their opinion the cause of the leak is in a lot.
There is no evidence in an “inspection” to see it there are any problems.
[1] The owner’s obligation does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
I am informing the committee that I have a dispute, as defined under section 227(1)(h) of the BCCM Act 1997, with the committee of the Body Corporate of Somerset Gardens CTS 2522.
I have responsibilities to the body corporate. Raising this dispute will not improve the position of the caretaker. In fact historically, there have been concerted efforts to discourage me from voicing my opinion. There have been instances of individuals, hiding behind anonymity and spreading false accusation and slurs on my reputation. People who are owner investors, have been actively encouragement by onsite owners, who are not investors and want me to not make my opinions known, to remove lots from the rental pool that I mange, simply to hurt me financially. Such an action is illogical and only vindictive because as I have gone to personal extreme lengths to provide a better value high quality as the caretaker and adjusted the contract to provide may extra service to the body corporate at no increase in fee and even sacrificed the CPI adjustment to help the body corporate.
I would like to make an attempt to resolve the dispute by internal dispute resolution in accordance with section 238(1((b) of the of the BCCM Act 1997.
I believe that the committee has power to participate in such internal dispute resolution under section 100(1) of the BCCM Act 1997, as such a decision does not require a resolution of the body corporate.
I am aware of practice direction 23 of the Office of the commissioner for Body Corporate and Community Management, that states:
“The obligation to attempt internal dispute resolution is consistent with the legislative responsibility for self- management as an essential aspect of living in a community titles scheme.”
I have forwarded copies of this dispute to all committee members individually to:
1. Ensure that executive members of the committee share the information in a timely manner and allow individual members to make their own decision on
c. the requirements of the body corporate to decide to issue notices to the body corporate manager, under section 142 of the BCCM (accommodation module) Regulations
I respectfully advice the committee that I have closely reviewed my own code of conduct. I have formed the belief that, I cannot be assured, by recent events that there is:
– a transparency of my information to the committee, though the body corporate representative, being made available to the body corporate, or
– that my input to committee meetings is being accurately distributed to the body corporate via minutes,
I will request that the committee members, communicate with me before the committee meeting on the 29th May 2023, and I also will take the lead on this to try to get a resolution.
From any such communication the committee, or at least a majority of voting members, can act reasonable at the committee meeting on the 29th May 2023 to resolve this dispute and other disputes before the committee.
To clarify, my dispute is
1. the conduct of members of the committee who have executed functions for the committee that are not done in accordance with the Regulations to the BCCM Act, thus being actions that are a breach of their code of conduct and
2. in making some decisions, the committee members have acted in accordance with their code of conduct, particularly, not acting in best interest of the body corporate.
3. that the committee has made decision in which they have not acting reasonable, and
This dispute can be resolved by the committee taking the appropriate actions in the next committee meeting.
The argument that the committee, or the body corporate, cannot act to resolve on a dispute that is before the commission is without basis. Simply put, if the committee, or the body corporate, could resolve a dispute by acting, why would it not do such. Would not doing such be acting reasonably? I say “no”, and challenge any person to present arguments from the Act or Regulations or from decision of the adjudicators from the commission that prove otherwise.
The particulars of the dispute are:
A. I sent to Lynne Smith, the body corporate representative, an email of the 28th March 2023 at 10:15am informing that of hazards that the body corporate faced due to the actions of the committee in the committee meeting of the 20th February 2023.
I note that, in that email, I said:
“If the committee does not act reasonably, I will have to raise a dispute and if not resolved by internal resolution, make an application and submission to the commissioner, that will result in all lot owners being informed.”,
and
“I would be happy to meet with the committee informally to discuss any of the above at a mutually convenient time.”
I had a response from the body corporate representative on the 4th April 2023 offering a meeting on the 11th April 2023. This was followed the next day notifying that such a meeting was “deferred”.
I am aware that in emails on the 13th April and 9th May 2023 the body corporate representative requested a list of issues that I had with the 20th February committee meeting. Respectfully, I feel that request was not appropriate as I was trying to not have documentation produced to allow the committee to make reasonable decision without a paper trail. That would be to the benefit of the committee. The idea of a ”list” of issues then makes any meeting a formal occurrence.
I waited patiently and no such meeting, that I was given an undertaking on the 4th April would occur and was “deferred” has happened to date.
I find such behaviour by the body corporate representative, Lynne Smith, to be not fair and honest. If you say that there will be an informal meeting then have one. Such informal meetings are common with the committee members. I would propose to you that having such a meeting was a serious effort to not have a dispute, and would have been very much in the best interest of the body corporate, especially with the other unresolved dispute.
I propose that the behaviour demonstrated is a contradiction of sections 2(1), 3 of the code of conduct for voting committee members in schedule 1A of Body Corporate and Community Management Act 1997
B. On the 15th April 2023 at 9:31am I sent the body corporate manager an email, asking that the secretary, Danielle Jones, motions be put on the agenda of the next committee meeting. I cc’d the body corporate representative, Lynne Smith, in that email.
My email was not acknowledged by the body corporate manager, nor the secretary of the committee.
I find this behaviour, on behalf of the body corporate representative, to be a contradiction of sections 1, 2(1), 3, 4 and 5 of the code of conduct for voting committee members in schedule 1A of Body Corporate and Community Management Act 1997
As a lot owner, I was sent the agenda of the next committee meeting by the body corporate manager on the 16th May 2023 at 11:13am.
This dispute, is that motions, sent on the 15th April 2023 are not on the agenda and my communication was not listed in the correspondence that is not in accordance with section 49 of the BCCM (accommodation module) Regulations 2020.
I find this behaviour of the secretary, who under section 46 calls the committee meetings, and under section 47 gives notice when calling and under section 49 creates that agenda, to be a contradiction of sections 2(1), 3 and 4 of the code of conduct for voting committee members under schedule 1A of Body Corporate and Community Management Act 1997.
I find that advising the body corporate manager to publishing the agenda, without my motions, which is the requirement of the nominee to the body corporate manager, Lynne Smith, from the committee meeting ion the 8th December 2021, to be behaviour of the contradiction of sections 1, 2(1), 3, and 4 of the code of conduct for voting committee members in schedule 1A of Body Corporate and Community Management Act 1997.
I find the publishing the agenda without my motions on the agenda, when they were aware that I had raised such motions, to be behaviour of the body corporate representative, that is a contradiction of sections 1, 2(1), 3, 4 and 5 of the code of conduct for voting committee members in schedule 1A of Body Corporate and Community Management Act 1997.
I note that the body corporate manager sent an email to the owner of tot 1 titled “RE: Somerset Gardens, CTS 25221, Motions for next committee meeting from caretaker”. I note the following:
there was no motion in the committee meeting of the 20th February 2023 of the committee issuing any correspondence to the owner of lot 1, not for Lynne Smith to give instruction to the body corporate manager, to send an email to a lot owner.
There has not been notice given of a motion under section 60 of the committee issuing any correspondence to the owner of lot 1, not for Lynne Smith to give instruction to the body corporate manager, to send an email to a lot owner
The body corporate manager, Lynne Smith and whoever compose the correspondence has breach the code of conduct in these actions.
The alleged response from the committee demonstrates:
a naïve misunderstanding of the role of a non-voting member of the committee,
the requirements of the Act and Regulations,
the judgements made by adjudicators
what is in the best interest of the body corporate, when independent legal opinions have been tabled to the committee and they will not act on that.
The alleged response has been given to other parties to make comments and have it available to the body corporate
The resolution I seek to this dispute is that the committee pass motions that the nominee will submit to the committee of 29th May 2023. Those motions should have been placed on the agenda by the secretary, however can legitimately be presented by a committee member (which the caretake is a non-voting member of the committee) under section 49(2) of the Regulations to the BCCM Act that reads:
“However, the committee may also consider other issues raised at the meeting”
The motions I will present will:
1. resolve the problems that exist because of individual committee members acting in way that are not compliant with the regulations to the BCCM Act,
2. resolve the disputes that have arising because of those actions,
3. put into practice, logical and transparent practice that wil ensure that the body corporate have faith in members of the committee to behave in accordance with the Act and Regulations to the Act and in the best interest of the body corporate in the future
The motions will see the committee as transparent and inclusive and not restrictive of information and making decision that are not in the best interest of the body corporate.
These motions will:
1. resolve the outstanding disputes of the committee and body corporate,
2. fix past mistakes,
3. Put in place procedure for the committee, now and in the future, for better function and support from a body corporate.
If committee members read the motions before the meeting and follow their code of conducts, is no reason why committee should not act reasonably and the motions could not be dealt with quickly.
The passage if the motions would remove some of the general business, so a procedural motion can be presented to the committee to deal with the motions at the start of the meeting.
I will personally send a link to each committee member with the details of the motions over the weekend.
I note that if the committee will not resolve this dispute then I have the right to take this dispute to the commissioner and seek arbitration or adjudication. This would be done in the best interest of the body corporate. If I have to take that action, I give notice that I am also in dispute with regard the legitimacy or the calling and notice of agenda give to the committee meeting of the 29th May 2023 and reserve the right to seek interim order to have the meeting declared invalid.
Also, I would like to make all committee members aware that any lot owner has the right under section 76, to present motions for consideration at the next general meeting at any time.
For committee member I will point out that,
– there is no limit to the number of motions a lot owner may submit to the body corporate, as opposed to section 50 of the Regulations that limit motions that can be put to the committee,
– For each motion the submitter can present an accompanying 300 word explanatory note,
– If the committee choose to submit it’s own explanatory note, it must pass the wording at a meeting (which can be challenged as not being a reasonable decision), such a not has to be in a separate schedule to the submitter explanatory note and what the committee says in the note has no protection for the committee from defamation action,
– From the experience of the 2022 AGM, I believe that any motions submitted by lot owners presented under section 76, will be presented in such a manner that they will meet the requirements of section 88(1)(a) of the BCCM (accommodation module) Regulations, so that they cannot reasonably be ruled out of order,
– That being the case any efforts by the chairperson, to ruled any section 76 motions of order under that section 88, would require legal advice to do so.
– If the chair was to seek to get such legal advice, the committee would require a motion passed before obtaining any such advice, any such motion would reasonably require a costing of such legal advice.
– Any action by an individual committee member to spend the body corporate’s money on legal advice without any such motions by the committee would be considered an action that is not in good faith and was negligent and it is expected that any provision of protection under section 101A from liability would be removed
I propose that the committee would be better served, in the best interest of the body corporate and acting reasonable act of to decide these motions now before a general meeting (section 100(5)). I say this as it is more cost effective
I will now list the topic groups of the motions that I will present to the meeting,
There will be those among the committee that may think to complaint that there are too many motions or they are too wordy. I share your concerns., but there is not other way that I can see a resolution.
I respectfully suggest that these motions would not all need to be addressed if things had been different in the past.
The committee is only in this situation due to the behaviour of individuals. If that behaviour had been in accordance with the Act and Regulations these motions would not be needed. If individuals and the committee as group had been given accurate advice and when given that advice had taken heeded it and acted on that advice, these motions would not be needed.
I ask each committee member to consider if those same individuals are the individuals suggesting that the motions I submit not be addressed or be voted against those motions.
You do not have to perpetuated the problem.
Please be aware that burying one’s head in the sand and hope that people will stop an action due to apathy or be worn down will only make things worse.
The committee could have dealt with the dispute from the 26th October AGM easily with internal dispute resolution, on numerous occasions. The minutes reflect that the decision to nothing was made even before the motion was put to the committee. That meant that it was the action taken was from individual not the committee.
Were those individual acting to protect themselves not in the best interest to the body corporate? Rational committee members should be asking themselves that question.
A resident who lives on the top floor of our apartment building has sought approval to place insulation in the space between the ceiling and the roof.
This space has fire sprinklers, air conducting ducting and lighting. It is common property. It is intended that the insulation be sprayed into the ceiling.
Initially, the project was to include wall cavities – but this has now been abandoned. The total cost is $2700 (GST inclusive).
This is an application by a lot owner to improve common property.
The question is – who can approve the application?
I understand the law provides that there are minor and major improvements to Common Property. Minor improvements are under $3000 and can be approved by the committee. Major improvements are over $3000 and must go to a general meeting.
We are regulated by the accommodation module. Work cannot be segregated to get under the $3000.
Is my interpretation of the law correct? Also what issues should be considered when granting approval?
Answer: Beyond the dollar value, the committee must act reasonably and this might take on a few forms.
Your interpretation is right. If it’s an improvement to common property then authorisation is based upon the value of the improvement.
Beyond the dollar value, the committee must act reasonably and this might take on a few forms. The committee might think it reasonable, for example, to query if any improvement impinges upon amenity or may cause a nuisance in the future. What about conditions? Is the work likely to cause disruption on the scheme? Does the committee have enough information in front of it (e.g., quotes, drawings, reports) to make a decision?
Also, are there any by-laws for the scheme which have an impact on this authorisation?
These would be your consideration in the scenario you describe.
The idea of splitting up the invoices is interesting. Maybe it could work if there were no objections, although it might be hard to come up with a good answer if someone thought this should be treated as the one project. My guess too is that the work you view as internal only – wiring – is likely to touch on body corporate property at some stage and so should be approved by the body corporate.
One alternative favoured by some body corporates would be to allow you to undertake the works now and have them retro-actively approved at the next general meeting. Of course, this doesn’t strictly adhere to the law, but it is a means by which you can get the works done and the body corporate can have them approved. The big question with doing it this way is what happens if the body corporate rejects your proposal at the AGM? Do you have to undo the works? Does the body corporate have to take legal action against you to make you undo them? Or do you have to take legal action against the body corporate to have the works approved? Most of the time this option works OK, but it can get messy when these things go wrong.
The upshot is that there probably isn’t a satisfactory answer to your question. Ideally the legislation would be changed to make it easier and more effective for both owners and body corporates, but Queensland is proving particularly slow in adapting to the changing demands of a rapidly expanding industry so don’t expect help from legislators any time soon. Maybe you could address your issues to your local MP or the SCA – the more people who do so the more momentum there is for change.
Judge Bolton’s comments in Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001
The very detailed provisions of the standard module regulation to which I have referred above make it almost inevitable that from time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.
In general, in order to invalidate a vote, there must be some evidence of malpractice or mistake, something which gives rise for a real concern that the votes counted are not as cast by owners. Mere non-compliance with the legislation, if proven, will not necessarily invalidate the voting tally or the motion
Member Roney QC in Lovel also noted:
It does not appear from those reasons that His Honour was taken to any particular authority in expressing the conclusions that he did as to the operation of those provisions. Nor does the reference in [27] of His Honour’s reasons to the Act make it clear that the proposition discussed concerning non-compliance ‘of an insubstantial nature’ was based upon or referenced to any identified legal principle or authority. It appears to me that His Honour was really paraphrasing and identifying an example of one of the circumstances in which an Adjudicator might decide to declare a meeting or a resolution passed as valid, notwithstanding that there were irregularities. One of those might be that the non-compliance was of an insubstantial nature, however it does not follow that it is only in circumstances in which the non-compliance is in insubstantial nature that an Adjudicator might exercise any of the powers vested in Adjudicators to validate irregular acts.7
Lovel v The Body Corporate for The Reserve (No 2), [2018] QCATA 169
S. Barry, Adjudicator in Kirribilli Heights [2021] QBCCMCmr 293
86 I am not in the practice of making orders that simply require a party to comply with the legislative regime, when they are required by the legislation to comply with the legislative regime. Such orders are usually superfluous.
95 I remain unclear about any actual prejudice the applicant might have suffered from this course of events. Instead he relies on “potential to cause prejudice and unfairness to the lot owners of the scheme”, or in more detail:
The Applicant’s concern was that if the EGM was incorrectly called and conducted, any decision of the EGM may be challenged by disgruntled lot owners and the Applicant would be further disadvantaged by not having the matter resolved by a valid EGM.92
[96] I note all other owners are silent.
Whether non-compliance is ‘insubstantial’ or not is a matter of opinion an interpretation, but I think little turns on it here. I agree with the thrust of the arguments put by the Member Roney QC in Lovel, which in effect support the view that cases are factually dependent. The principle from Wei-Xin Chen, although still relevant, is often quoted too narrowly and out of context, a context identified in Lovel.
[73] I think what is important here is that the committee voted to call the EGM in good faith, it did not just occur. Just because they did not go the extra step of formally authorising one of their number to call the meeting, will not cause me to void the meeting. The body corporate will know better next time.
I am unsure what any order from me regarding this aspect of the dispute will achieve. As an owner and a non-voting committee member, the applicant holds rights within the legislation and no doubt the body corporate has been respecting those in the last year and will continue to do so in the future. My comments also apply to the supply of minutes of VOCs and meetings. If the body corporate was unaware of its legislative obligations, I am sure that is now not the case.
The committee must also ensure that full and accurate minutes of each motion from its meetings are recorded.6
Again, in regard to this aspect of this dispute, the situation was not ideal in the past and I can understand why the committee’s approach might have caused the applicant consternation, given the developing state between them. The question that needs to be generally asked (and one for the applicant) is if the committee does not take actions to try and bring the body corporate into compliance, would it then be criticised for its inaction?
60 I have discussed the committee’s response to this argument above and I agree with it. It dealt with these legacy lapses and the original decisions were made by committees with different members. This is noted in the minutes of the VOC and it is certainly not something the 2020 committee was trying to conceal from owners, the opposite in fact.
I keep saying the situation was not ideal and I do not know what returning any of this for further decision making would achieve. The respondent argues the legislation does not appear to restrict this approach. It does not. The legislative regime is certainly extensive, but it fails to anticipate many issues. If committees ‘get it right’, so to speak, at first instance, this will not be necessary.
57 Suffice to say it is possible to ratify issues, it is not an ideal situation and one hopes that general resort to ratification is not necessary, and does not become a matter of practice for this or any other body corporate.
] The concerns held by the applicant are that due to the absence of records and compliance with the legislation, “the actions of the committee in managing the affairs of the body corporate put it beyond scrutiny”, as members “have developed a habit of ignoring the procedures required” by the legislation and “making decisions in ways that defy scrutiny.”55
There are anomalies identified here, there were problems and there are mistakes conceded by the body corporate. I need to look at the facts as I can find them, apply the law and then decide whether it is just and equitable to make the order sought. In a general sense, I am not satisfied that the applicant has proved that he or his company has suffered prejudice that would cause me to intervene.
Much of what he argues concentrates on ‘potential’ prejudice and unfairness. If that was the measure in bodies corporate, we would never keep up with the number of dispute applications. If the applicant sought legal advice and incurred some costs, I agree that is unfortunate, but as the respondent says, he could have simply allowed the decisions to stand without complaint. I cannot avoid the observation that the EGM, for example, was called to deal with an AGM error identified by the applicant himself.
I think what is important here is that the committee voted to call the EGM in good faith, it did not just occur. Just because they did not go the extra step of formally authorising one of their number to call the meeting, will not cause me to void the meeting. The body corporate will know better next time.
Body corporate manager, or committee members should have been aware of Kirribilli Heights [2021] QBCCMCmr 293 and taken action by VOCM to fix past errors in
24 “respondents claim “reauthorising decisions does not overcome the original failure”,the outcome the applicant requires also does not achieve that result. Instead, “ratifying the original failure” deals with the situation,35 and the body corporate is unsure of an alternative.
“it is unfortunate that these decisions were not recorded closer to the time of the decisions being made.” The only course for the body corporate, it contends, was to follow the path that it chose, otherwise it would not have recorded “the decisions in any capacity” making it even less legislatively compliant, potentially causing further complaint from the applicant.
meaningful submission taking issue with the content or consequences of the VOC resolutions. Accordingly, there is no identified prejudice or unfairness that has been caused and the Respondent ought not to be put to the unnecessary consequence of then having to reissue the VOC and EGM on the exact same terms, but just with notice and advice of the VOC being provided in advance.
In the absence of any record of that committee’s decision and the date on which such a decision was made, the Applicant has been disadvantaged in its dealings with the body corporate because it was unknown whether or not the body corporate was acting with authority or not. In the absence of facts, the Applicant had assumed that the body corporate’s representatives were acting with the support of the committee, but faith and trust are hard to maintain when the committee officers wilfully disregard the rules under which they are supposed to operate
Response
that inconsequential and technical noncompliance ought not to invalidate decisions of the Respondent.” The outcome the applicant seeks will not assist him, says the respondent, and the body corporate in the circumstances was trying “to regularise (as best as possible) previous decisions that were made”, and the alternative “is hardly a better outcome.
Response
VOC dealt with “historical decisions” made by a previous committee and so the composition of the committee differed. It submits there is no restriction in the Accommodation Module preventing such an approach “particularly when the VOC minute specifically details who the committee members were for each resolution.” In any case, this should not result in voiding the VOC
This is not to say the applicant does not raise valid concerns about how past committees have dealt with meetings and the body corporate is on notice that it must comply with the legislation. If sufficient non-compliance occurs again, it cannot plead ignorance.
112 This office cannot ultimately solve internal problems within schemes; instead this is a matter for owners. I agree with Carmody J, when he warned that in community titles disputes, “orders cannot change human nature or impose good will and cooperation where there is none.
Campbell v The Body Corporate for 70 Bowen St CTS 15330 & Ors [2019] QCATA 69, para 36.
I am unable on the evidence presented to me to conclude that any lot owner, including the applicant, was prejudiced or disadvantaged. Indeed, the way that earlier decisions were made in the VOCs demonstrate greater irregularity (if such a description is possible) and it appears the body corporate in 2020 was attempting to regularise its decision making processes. It still did not get them quite right, but that does not cause me to interfere with the outcomes of their actions.
100 the respondent
Acknowledges that in the past it did not precisely comply with the decision making requirements of the Accommodation Module. However, the Respondent has subsequently recognised this and taken the only steps available to it to regularise those decisions. The Applicant takes issue with this course of action for technical reasons and provides no solution other than to seek to invalidate the remedying steps that were taken.9
There is nothing to be achieved by me forcing the body corporate back to another general meeting. It must also be remembered the EGM was conducted a year ago. The applicant has not demonstrated any prejudice to me regarding this aspect of his arguments. I note that not a single other lot owner provided me with a submission about this dispute. No other owner is apparently troubled enough about this dispute to record concerns. I am not suggesting that is the end of the matter, but it is an issue I take into account. No other owner argues they have suffered prejudice by the events surrounding the VOC and EGM. Finality is important here. I am not approving the past conduct of the committee and the body corporate.
It strikes me, like it usually does, that although the community titles legislative regime is voluminous, complex and apparently prescriptive, cases are often factually dependent and where possible, those hearing reviews are loathe to ‘fence in’ body corporate disputes.
Flexibility is required in these disputes for a number of reasons, including issues such as legislative complexity, costs, and encouraging principles involved in self-management. Many of the disputes referred to us about meetings are simply pointless. This is not a carte blanche authority to act outside the legislation or for a committee or body corporate to act outside the legisaltion, it is a statement of reality. Conversely, enough adjudicator decisions invalidating motions or meetings exist (including from me), showing that not all transgressions will be excused.
84. The body corporate’s previous non-compliance is now on the record. My comments are also now on the record. Although not binding a subsequent adjudication application (hopefully that will not be necessary), the respondent may have difficulties explaining later non-compliance after what has occurred in the past.
To void need to demonstrate suffered prejudice and unfairness
4.1 The manager must supply the agreed service stated in Item B to the Body Corporate in accordance with the terms of this agreement
4.5 The manager will at all times comply with (a) the Act (b) the module (c) code of conduct
Agreed Service Administration
“Establish and maintain the roll and registers”
Minutes in committee meeting
6th May 2020 BCS body corporate manager
19th August 2020
3rd December 2020 – caretaker excluded from meeting as non-voting member
Mention of register of improvements to lot
10th February 2021 caretaker excluded from meeting as non-voting member
No mention in meeting of register of improvements to lot
12th May 2021
25th May 2021 caretaker excluded from meeting as non-voting member
8th December 2021
No mention in meeting of register of improvements to lot
24th January 2022
register of improvements not noted specifically however,
11th May 2022
register of improvements not noted specifically however,
24th August 2022
register of improvements not noted specifically however,
28th November 2022
register of improvements not noted specifically however,
Not in correspondence list , no motions as to what the alleged correspondence was
20th February 2023
register of improvements not noted specifically however,
Caretaker asserts that they did not make this statement in the meeting and sought discussion to address, offered then delayed and not forthcoming, dispute raised with committee
To build a permanent pergola that uses common property airspace you will need either:
exclusive use rights to that part of the common property airspace; or
an indefinite lease or licence.
Both of these require a resolution without dissent at a general meeting. If the pergola is only temporary, then you may be able to obtain a lease or licence by way of special resolution, but this depends on the length of the lease or licence and the regulation module applying to your scheme.
In addition to the above, a pergola extending into the common property airspace will generally constitute an improvement to common property. That is likely to require an ordinary resolution, depending on the cost of the pergola. It is also important to check your by-laws as approval to changes in the appearance of your lot is likely to also be required.
From a legislative perspective, one of the main aims of the BCCM Act and modules is self governance of bodies corporate. This means the government wants volunteers (such as committee members) to be able to run their committees the way they choose, subject to the stated legislative constraints.
The modules set out what has to happen for committee meetings. The right notices need to be given, owners are given the opportunity to attend, and records must be kept and given to owners.
Naturally, and almost without exception, active committee members will meet outside committee meetings to discuss what is going on, and perhaps what they are looking to achieve. It is correct that these meetings are simply informal chats about whatever they may be, and any issues notionally agreed to then require formal discussion (and ratification) at a properly convened committee meeting.
We have had a few clients recently where their committees are having regular informal meetings and then seeking to enforce the outcomes agreed at those meetings outside of the legal committee structure. Notional resolutions are being made, and then sent to the body corporate manager for inclusion with the next minutes sent to owners. This is fraught with danger for all concerned.
A previous article we have written deals with the abuse of votes outside committee. These ‘informal’ meetings are no different.
Committees must be open and transparent. Any process that avoids openness and transparency (intentional or otherwise) and prevents owners of informing themselves properly of what is going on in the scheme, is potentially unlawful.
Whilst the legislation supports self governance, it does not extend to circumstances where actions, no matter how well intended, are likely to circumvent the obligations contained in the BCCM Act and the modules.
If actions are taken by bodies corporate based on these informal decisions, to the extent that they are later deemed to circumvent the required statutory requirements, there is a real risk that they might be declared unenforceable or void, leading to all sorts of ugly complications for all concerned.
The body corporate committee is a collective decision-making entity. Individual committee members are not empowered to make decisions on behalf of the committee. Once the committee has made a decision, that decision might then empower an individual committee member to take action, for example, speak to a contractor. It’s also common for a committee to decide upon a committee member as a liaison person between the committee and its contractors, although again, this is something that needs to first be decided upon by the committee.
