An adjudicator has dismissed an application seeking to prevent, and invalidate, an Extraordinary General Meeting (EGM) from proceeding based on a number of technical statutory compliance issues.

The applicant argued that he had “suffered prejudice and unfairness”, due to a number of concerns including:

• not being provided with written notice of meetings and VOCs;
• holding meetings without notifying him, even when he was unable to participate in the meeting;
• not being provided with minutes of committee meetings or records of VOCs; and
• VOC record were not “full and accurate”.

Read on for details and reasoning for the order being dismissed.

Much of the applicant’s argument centred on ‘potential’ prejudice and unfairness. Whilst acknowledging the body corporate had at times been legislatively non-compliant on a strict interpretation, the adjudicator concluded that the applicant “had failed to actually identify any prejudice and unfairness”, other than they may have incurred legal costs trying to stop the EGM –  a decision taken of his own accord and one that could have been avoided if he simply allowed the EGM (which was called to deal with another technical error identified by the applicant) to proceed.

A copy of the adjudicator’s decision, which has not yet been published, can be found here.

Kirribilli Heights, and the previously reported Watermark Residence Decision, reinforce the fact that OCBCCM adjudicators frequently take a pragmatic and common-sense approach to issues brought before them; and that the specialised jurisdiction, and the Body Corporate and Community Management Act, is not designed to ventilate every technical body corporate issue that may arise, particularly when the motive for the application does not appear genuine.

If you find your body corporate facing similar circumstances, the outcome of this order should be considered when submitting or defending an application.

Mahoneys acted for the Kirribilli Heights Body Corporate in guiding the committee through the dispute and ultimately having the application dismissed.

This article was contributed by Todd Garsden, Partner – Mahoneys

 

 

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