Hi-Ho Holiday Motel [2000] QBCCMCmr 567 (7 November 2000)

RA MeekREFERENCE: 0595-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14117
Name of Scheme:	Hi-Ho Holiday Motel
Address of Scheme:	2 Queensland Avenue, BROADBEACH QLD 4218

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

Colin Lamont, the co-owner of lot 25


RA MeekI hereby order that the application by Colin Lamont, the co-owner of lot 25, for an interim order that the body corporate be required to include the name Colin Lamont amongst candidates nominated for the position of Chairperson and / or committee member for its AGM notices due to be sent no later than 7th November 2000 for the meeting on 29^th November, is dismissed.

n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0595-2000

“Hi-Ho Holiday Motel” CMS 14117

The applicant, Colin Lamont, the co-owner of lot 25, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

That the body corporate be required to appoint an impartial and disinterested party to act as returning officer for all voting on positions and motions for the forthcoming AGM on November 29^th 2000.

The Applicant has also sought the following interim order of an adjudicator, quote -

That the body corporate be required to include the name Colin Lamont amongst candidates nominated for the position of Chairperson and / or committee member for its AGM notices due to be sent no later than 7th November 2000 for the meeting on 29^th November.

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)).

In respect of the interim order sought by the applicant, I have been provided with an explanation as to why the applicant apparently did not receive his nomination forms and notices calling for nominations until after the due date for nominations / motions had closed. This explanation has been contradicted in a submission provided by the committee in response to the application. In turn, the applicant has sought to discredit the explanation of events provided in the committee’s submission in his reply to that submission.

This is an application for an interim order. I do not consider that I am in a position to determine matters which depend greatly on matters of credit and credibility in the context of an interim order, where urgency is supposedly paramount. In the circumstances however, I consider that I do not have to make any substantiative determination of this application for inclusion on the list of candidates for the forthcoming election, since the nomination of the applicant has in the interim been withdrawn by the nominator, Kerry Maguire. The question of whether therefore I should order that the nomination of the applicant for chairperson be included on the AGM notice becomes irrelevant in my view.

The body corporate has provided to me a copy of both the “nomination of candidate” signed by Kerry Maguire, and further, a copy of a subsequent letter from Kerry Maguire stating that –

Having witnessed Mr Colin Lamont, in all his unreasonable glory, yesterday, I would like to withdraw my nomination of Mr Lamont to the committee. I feel his behaviour is not what the committee of Hi Ho Holiday Apartments needs, as I think he has only his own agenda foremost in his mind and not the good of all owners. ...

In his reply to the submission, the applicant has responded to the withdrawal of nomination as follows –

It does not surprise me that politics has subsequently been played to persuade my nominator that my outrage expressed over this matter was unreasonable. She was never given the context by me nor knew my side of the story and indeed I was totally unaware of her withdrawal of nomination ... . I should point out that had I known I would have certainly had several other owners who were prepared to take up the nomination. ... . If the fact that someone else being willing to substitute their name to keep my nomination alive is not permissible because of the date issue, so it the withdrawal not admissible for the same reason. Also, she apparently withdrew her support only because she did not approve or understand my reaction which I would not have displayed if I had been given fair notice.

The legislation is silent on the question of the right to withdraw a nomination. I have consulted Joske’s Law and Procedure at Meetings in Australia (Eighth Edition) without gaining any clarification of the point. I have gained some assistance however from a recent decision of Judge Dodds in a District Court appeal of an adjudicator’s order. In that decision, Judge Dodds posed the following question –

... whether a person nominating another for the position of chairperson of the body corporate can withdraw the nomination before the chairperson of the meeting at which the election of office bearers is to take place declares that person elected unopposed and what affect, if any, that will have. ...

Whilst the facts of that matter were different (and in fact more complex) than those here, I consider that an analogy can be drawn. His honour concluded -

Provided a nominee remains willing to be elected to the position nominated I think that once a nomination has been received and published to the electors it may only be withdrawn with the consent of the meeting at which the ballot is to be held. The position is analogous in my view to a motion moved at a meeting. Provided a majority at the meeting agree to its withdrawal the nomination may be withdrawn.

I consider that it is implicit from the above statement that a nomination can be withdrawn by the nominator, at least until it has been published to the electors. This view would seem to be logical. In the present circumstances, irrespective of the issues relating to receipt of the nomination in any event, the notice of meeting has not been sent to owners, and consequently there has been no publication of the applicant’s nomination to electors.

I consider that the nominator was entitled to withdrawn the nomination. Moreover, the applicant’s assertions that had he known he might have sought another nomination or that there was justification for the conduct on his part which lead to the nominator’s withdrawal of the nomination, are all irrelevant to me.

I consider that the nominator’s withdrawal of the nomination of the application disposes of the dispute the subject of the interim order, and therefore I intend to dismiss this application for an interim order.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.