Galleon Harbour [2001] QBCCMCmr 29 (22 January 2001)

P G DanielsREFERENCE: 0512-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26463
Name of Scheme:	Galleon Harbour
Address of Scheme:	174 Galleon Way CURRUMBIN WATERS QLD 4223

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

Irene Maisie Ford the owner of lot 9



P G DanielsI hereby order that Philip Richard Whitehead and Maurice Joseph Quirke are not eligible to be members on the Committee of the Body Corporate for Galleon Harbour community titles scheme 26463.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0512-2000

“Galleon Harbour” CTS 26463

The applicant, Irene Maisie Ford, the owner of lot 9, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

“That Philip Richard Whitehead & Maurice Quirke be regarded as ineligible for election to Body Corporate Committee having regard to sec 10 BCCM (Standard Module) Regulation 1997.”

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)).

In the supporting grounds, the applicant states that Philip Whitehead and Maurice Quirk were elected to the Committee at the first annual general meeting on 15 December 1999.

The applicant states that both persons have a beneficial interest in the management agreement relevant to the scheme. It is stated that the agreement is entered into between the Body Corporate and Nashware Pty Ltd and Quirke Nominees Pty Ltd. The applicant states that the managing director of Nashware is Philip Whitehead and the sole director of Quirke Nominees is Maurice Quirk.

Company searches of the companies reveal that Philip Whitehead is a director of Nashware Pty Ltd and Maurice Quirk is a director of Quirke Nominees Pty Ltd.

The applicant seeks an order that Philip Whitehead and Maurice Quirk not be eligible for election to the Committee.

Section 10 of the Body Corporate and Community Management (Standard Module) Regulation 1997 provides who is eligible to be a member of a Committee:

Eligibility for committee membership

10.(1) A person is eligible to be a member of the committee if the person

is an individual and is also—

(a) a member of the body corporate;6 or

(b) a person nominated for membership of the committee by a

member of the body corporate.

(2) However, a person who is otherwise eligible under subsection (1) to

be a member of the committee is not eligible to be a member of the

committee if the person is—

(a) a body corporate manager, service contractor or letting agent; or

(b) an associate of a body corporate manager, service contractor or

letting agent (other than a lot owner who is the associate of a

letting agent merely because the letting agent, in conducting the

agent’s letting agent business, acts for the lot owner).

(3) Despite subsection (2), a person who under subsection (1) is eligible

to be a member of the committee, but who is a body corporate manager,

service contractor or letting agent, is a member of the committee if the

person is chosen only as the secretary, treasurer, or secretary and treasurer.

(4) A person who under subsection (3) is a member is a “non-voting

member” of the committee.

(5) Only 1 co-owner of a lot can be a member of the committee, on the

basis of ownership of the lot, at a time.

Associate is defined by section 256 of the Act as follows:

Associates

256.(1) For this Act, a person is associated with someone else if—

(a) a relationship of a type to which this section applies exists

between them; or

(b) a series of relationships of a type to which this section applies can

be traced between them through another person or other persons.

(2) This section applies to relationships of the following types—

(a) marriage or de facto relationship;

(b) the relationship of ascendant and descendant (including the

relationship of parent and child) or the relationship of persons

who have a parent or grandparent in common;

(c) partnership;

(d) the relationship of employer and employee;

(e) a fiduciary relationship;

(f) the relationship of persons, 1 of whom is accustomed, or under

an obligation (whether formal or informal), to act in accordance

with the directions, instructions or wishes of the other;

(g) the relationship of a corporation and executive officer of the

corporation;

(h) the relationship of a corporation and a person who is in a position

to control or substantially influence the corporation’s conduct.

(3) In subsection (2)—

“de facto relationship” means the relationship between 2 individuals who,

although not married to each other, live in a relationship like the

relationship between a married couple.

“executive officer”, of a corporation, means a person who is concerned

with, or takes part in, the corporation’s management, whether or not

the person is a director or the person’s position is given the name of

executive officer.

Section 10 provides that service contractors and letting agents and their associates cannot be Committee members except where sub-section 10(3) applies.

Sub-sections 10(3) and 10(4) provide that a service contractor and/or letting agent can be a non-voting Secretary and/or Treasurer of a Committee. It will be noted that sub-section 10(3) does not apply to associates of letting agents and service contractors. This results in a service contractor and/or letting agent who is a natural person being able to serve on a Committee. However, if the service contractor and/or letting agent is a company, an associate of the company such as a director cannot serve on the Committee. The result is not really satisfactory. This matter will be addressed when the Regulation is amended.

Mr Whitehead and Mr Quirke are associates of a service contractor and letting agent for this scheme, Nashware Pty Ltd and Quirke Nominees Pty Ltd. They are prohibited from being on the Committee by sub-section 10(2) of the Regulation. Sub-sections (3) and (4) do not apply.

I have been informed that Mr Whitehead and Mr Quirke have resigned from the Committee. However, this application has not been withdrawn.

I will make orders that Mr Whitehead and Mr Quirke are not eligible to be members of the Committee.1n