South Pacific Plaza [2000] QBCCMCmr 26 (24 January 2000)

P G DanielsREFERENCE: 0016-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10922
Name of Scheme:	South Pacific Plaza
Address of Scheme:	157 Old Burleigh Road BROADBEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Margaret Wong the owner of lot 62 and Kevin Edward Watts and Patricia Mary Watts the co-owners of lot 35,



P G DanielsI hereby order that the application for interim orders that:

1.	Orders 0680-1999 made by the adjudicator, P.G. Daniels, be complied with in full and that detailed attention be given to the following two orders:

“-that the Secretary, Kim Elliott, must include on the Agenda for the meeting any motion submitted by the owner of a Lot or the Committee provided that the motion is received within one (1) month of the date of this order___”

17^th November 1999

and

“-that any person nominated for a position on the Committee by an Owner of a Lot must be included on the Ballot for election of the Committee provided that the nomination is received within one (1) month of the date of this order___”

17 November 1999

2.	Any motion or nomination already submitted, which is out of the above time frame be declared invalid and that no other motion or nomination can validly be included on the Agenda for the E.G.M. 16th February 2000.

3.	Secret voting papers be processed in accordance with Sections 53, Secret Ballot, and Section 19, Conduct of Ballot – General Requirements, which includes that “-each candidate for a ballot and any scrutineer appointed by the candidate, may watch the count” at the opening of the voting papers.
4.	Valid nominations and motions are required to be signed by the Lot Owner or all Co-owners.

is dismissed.1y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0016-2000

“South Pacific Plaza” CMS 10922

The applicants, Margaret Wong the owner of lot 62 and Kevin Edward Watts and Patricia Mary Watts the co-owners of lot 35, have sought interim and final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

1.	Orders 0680-1999 made by the adjudicator, P.G. Daniels, be complied with in full and that detailed attention be given to the following two orders:

“-that the Secretary, Kim Elliott, must include on the Agenda for the meeting any motion submitted by the owner of a Lot or the Committee provided that the motion is received within one (1) month of the date of this order___”

17^th November 1999

and

“- that any person nominated for a position on the Committee by an Owner of a Lot must be included on the Ballot for election of the Committee provided that the nomination is received within one (1) month of the date of this order___”

17 November 1999

2.	Any motion or nomination already submitted, which is out of the above time frame be declared invalid and that no other motion or nomination can validly be included on the Agenda for the E.G.M. 16th February 2000.
3.	Secret voting papers be processed in accordance with Sections 53, Secret Ballot, and Section 19, Conduct of Ballot – General Requirements, which includes that “-each candidate for a ballot and any scrutineer appointed by the candidate, may watch the count” at the opening of the voting papers.
4.	Valid Nominations and motions are required to be signed by the Lot Owner or all Co-owners.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

I will deal with Orders 1 and 2 above together as they are related and orders 3 and 4 separately.

Orders 1 and 2

I made orders dated 17 November 1999 for this Body Corporate that provided, amongst other things, that the Secretary must call an EGM at which a new Committee would be elected. Additionally, the Committee would consider any motions submitted by owners. I stated in my orders that nominations and motions must be received within one month of the date of my order. The Secretary sought the submission of nominations and motions by 20 December 1999. This, of course, is three days longer than the one month period I set in my order.

The applicants seek orders that any nominations or motions that were received after 17 December 1999 are invalid and cannot be considered by the Body Corporate at the EGM which will be occurring on 16 February 2000.

The jurisdiction of an adjudicator as relevantly set out in section 223(1) of the Act is as follows:

Orders of adjudicators

223.(1) An adjudicator to whom the application for an order of an

adjudicator is referred may make an order that is just and equitable in the

circumstances (including a declaratory order) to resolve a dispute, in the

context of a community titles scheme, about—

(a) a claimed or anticipated contravention of this Act or the

community management statement; or

(b) the exercise of rights or powers, or the performance of duties,

under this Act or the community management statement;

It will be observed that the jurisdiction of an adjudicator relates to the Act or the community management statement.

There is no jurisdiction vesting in an adjudicator to determine if an order has been contravened and to make further consequential orders. On this basis, the application for orders 1 and 2 must be dismissed.

Sections 234 and 235 of the Act are provisions that allow an order to be enforced through the Magistrates Court. I do not have any enforcement powers.

I do wish to make the following observations about the contravention of my order. Owners were allowed an extra three days to lodge nominations or motions. The extra time is relatively short. The extra time given will not have a significant impact on the general meeting. I view the contravention as relatively minor.

Order 3

The applicants seek orders that the Body Corporate comply with sections 19(5) and 53 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation).

Sections 19(5) and 53 provide as follows:

(5) Each candidate for a ballot, and any scrutineer appointed by the

candidate, may watch the count.

Secret ballot

53.(1) This section applies if the committee recommends that a motion

be decided by secret ballot.

(2) The secret ballot must be conducted, to the greatest practicable extent,

in the way a secret ballot is conducted for the election of executive and

ordinary members of the committee.

(3) However, the recommendation of the committee for the secret ballot

has no effect unless it is made when there is enough time for the appropriate

material for voting by secret ballot to be forwarded to lot owners when the

notice for the general meeting is forwarded.

It seems to me that the applicant is seeking compliance with section 19(5) in respect of the election of the Committee and motions that are to be determined by secret ballot. Section 53(2) provides that a secret ballot in respect of a motion must be conducted “to the greatest practicable extent” in the same way as the election of a Committee. I do not think that section 19(5) can be invoked when a motion is to be determined by secret ballot. Section 19(5) refers to rights vesting in a candidate or scrutineer appointed by the candidate. In respect of a motion there is no candidate being elected. Section 19(5) seems to me to be irrelevant to a motion that is to be determined by secret ballot.

That leaves the question of whether an order should be that requires the Body Corporate to comply with section 19(5) in respect of the election of the Committee at the EGM on 16 February 2000.

The applicant has provided no reasons in respect of why this order should be made. There is no suggestion that a person or persons will be denied rights provided by section 19(5). I decline to make the order sought.

Order 4

The applicants challenge whether one co-owner may nominate a person to the Committee or submit a motion for consideration. This depends on whether an owner is defined to mean all co-owners or merely any of them.

The word “owner” is defined in the dictionary of the Act, located in Schedule 4, as follows:

“owner”, of a lot (other than a lot that is a community titles scheme)

included in a community titles scheme, means the person who is, or is

entitled to be, the registered owner of the lot, and includes—

(a) a mortgagee in possession of the lot; and

(b) if, under the Land Title Act 1994, 2 or more persons are the

registered owners, or are entitled to be the registered owners, of

the lot—each of the persons.48

48 Each co-owner is an “owner” of the lot for the purposes of the Act and is

therefore entitled to the rights of ownership (eg. the right to submit motions for

consideration at general meetings of the body corporate) and is liable (jointly

and severally with other owners) for the obligations of ownership (eg. the

obligation to pay contributions to the body corporate). However, certain rights of

ownership (eg. the right to vote at general meetings of the body corporate) are

not multiplied by the existence of 2 or more owners.

It is clear that one co-owner may nominate a person to the Committee or submit a motion for consideration. I will not make the order sought.

In some material submitted by the applicants they raise the issue of whether a returning officer should be appointed for the meeting: section 54 of the Regulation. They have not provided grounds to support such an order. I decline to make such an order.

The applicants are not entitled to any of the orders sought. I dismiss the application.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.