Seamist Lodge [2000] QBCCMCmr 74 (16 February 2000)

P G DanielsREFERENCE: 0649-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11136
Name of Scheme:	Seamist Lodge
Address of Scheme:	14 Levuka Avenue CALOUNDRA QLD 4551

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

Mr Ronald Alan Johnson a co-owner of lot 6

P G DanielsI hereby order that the application for orders:

1.	Declaring void for irregularity the general meeting of the body corporate held on 11-9-99;
2.	Requiring the Secretary to issue notices to general meetings which comply with the provisions of section 42 of the Body Corporate and Community Management (Standard Module) Regulation 1997;

3.	Requiring the Secretary to serve notices on each lot owner inviting submissions for election to the committee in accordance with sections 13 to 22 of the Regulations

is dismissed.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0649-1999

“Seamist Lodge” CTS 11136

The applicant, Mr Ronald Alan Johnson, a co-owner of lot 6, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	Declaring void for irregularity the general meeting of the body corporate held on 11-9-99;
2.	Requiring the Secretary to issue notices to general meetings which comply with the provisions of section 42 of the Body Corporate and Community Management (Standard Module) Regulation 1997;

3.	Requiring the Secretary to serve notices on each lot owner inviting nominations for election to the committee in accordance with sections 13 to 22 of the Regulations.

Section 223(1) provides that an adjudicator 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 the 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; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The applicant complains about alleged irregularities in the calling of the Body Corporate’s annual general meeting (AGM) on 11 September 1999.

The applicant states that the Notice of Meeting did not contain and was not accompanied by voting papers in which each motion to be considered at the meeting was stated.

It is difficult to understand the allegation as the applicant attached to his application a document titled “VOTING PAPER AND EXPLANATIONS” that relates to the AGM on 11 September. The Secretary Dr Gillies and another owner Mrs Mason state in their submissions that this document was received prior to the meeting.

I have examined this document in determining whether it complies with section 42(3)(c) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) which provides what is to be contained within a voting paper. Section 42(3)(c) provides:

(c) be accompanied by a voting paper—

(i) stating each motion to be considered at the meeting and, if the motion is not proposed by the committee, stating the name and lot number of the person proposing the motion; and

(ii) stating for each motion whether a resolution without dissent, special resolution or ordinary resolution is required; and

(iii) enabling a person who is a voter for the general meeting to record a written vote on each motion to be considered at the meeting;

I have formed the view that the notice does comply with section 42(3)(c). It does state each motion, the sort of resolution required and space was provided on the form for a person to record a vote. There was no provision stating the voting alternatives eg No/Yes/Abstain. However, this is not a requirement of the legislation. It seems to me that the Secretary could consider improving the quality of the form by providing these options. That is a matter for him and the other owners in the Body Corporate.

Dr Gillies stated in his submission that he sent a letter to owners in mid year 1999 asking for the submission of motions. He did not seek nominations to the Committee in this letter. However, he rectified this situation by sending a second letter a few days later. I wish to inform Dr Gillies that he correctly sought nominations as this is a requirement of section 13 of the Regulation which provides:

ú

Nominations to committee

13.(1) This section states how individuals are nominated for election (other than an election held at the first annual general meeting for the scheme) as chairperson, secretary, treasurer or ordinary member of the committee.

(2) The secretary must serve notice on each owner shown on the body corporate’s roll, inviting each lot owner—

(a) if the lot owner is an individual—to nominate the lot owner or another individual for election as a member of the committee; and

(b) if the lot owner is not an individual—to nominate an individual for election as a member of the committee.

(3) The notice must be given at least 3 weeks before, but not earlier than 6 weeks before, the end of the body corporate’s financial year.7

(4) Nominations must be given to the secretary by the end of the body corporate’s financial year.

(5) A nomination must be given in the form of a written notice and—

(a) if the nomination is from a lot owner nominating the lot owner—must be signed and dated by the lot owner; or

(b) if the nomination is from a lot owner nominating an individual other than the lot owner—

(i) must be signed and dated by the individual; and

(ii) must be countersigned by the lot owner, or a person acting under the authority of the lot owner; and

(iii) must state the lot owner’s lot number.

(6) A nomination must contain the following—

(a) the surname and either the first given name or other name or abbreviation by which the nominated person (the “candidate”) is generally known;

(b) the position or positions the candidate is nominating for;

(c) if the nomination is for secretary or treasurer—

(i) whether the candidate is the owner of a lot; and

(ii) if the candidate is not the owner of a lot but is nominated because of the candidate’s duties as the employee of, or provider of services to, another person—the other person’s name.

(7) As soon as practicable after receiving a nomination under this section, the secretary must forward written notice to the candidate acknowledging that the nomination has been received.

7 Under section 41 (Opportunity to submit agenda motions), the notice must also invite submission of motions for inclusion on the agenda for the annual general meeting.

I do not intend to invalidate the AGM on 11 September 1999 nor make the other orders sought by the applicant. I dismiss the application.1n