The Breakers [2001] QBCCMCmr 299 (5 June 2001)

RA MeekREFERENCE: 0122-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13261
Name of Scheme:	The Breakers
Address of Scheme:	60 Old Burleigh Road SURFERS PARADISE QLD 4217

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

Gordana Tyrer, the owner of lot 16


RA MeekI hereby order that the application by Gordana Tyrer, the owner of lot 16, for an order that the ballot paper submitted for lot 16 for the committee election conducted at the AGM held on 5 December 2000 be declared admitted and votes for candidates be counted, and other ancillary orders, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0122-2001

“The Breakers” CTS 13261

The applicant Gordana Tyrer, the owner of lot 16, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	The ballot paper submitted for lot 16 for the committee election conducted at the AGM held on 5 December 2000 be declared admitted and votes for candidates be counted.
2.	If, as a result, the number of persons elected as ordinary members exceeds 5, the result of the ballot be decided by chance in the way the Secretary decides, provided that all candidates with the same number of votes must be present at the time the decision by chance is made.
3.	If there is any change to the composition of the committee as stated in Minutes of the AGM held on 5th December 2000 already given to owners, those minutes be amended to state the new composition of the committee and such amended Minutes be given to all owners as soon as practicable.
4.	Such further order, if any, that may be considered necessary or appropriate.

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)).

I do not intend to restate the applicant’s grounds. I intend to make two observations regarding the information before me, and then to give my decision.

The first observation is that it is objectively clear that the applicant’s correspondence to the secretary was receipted by Australia Post on 1 December, 2000, and from the notation on the letter, it seems that a registered mail card was left in the addressee’s postal box on that date. This however may have been after any collection on that date by the addressee. Presumably though, the card would have been received in the first mail collection on Monday 4 December, 2000, the day before the AGM. One would expect that given the AGM was imminent, the manager would have sought to process all mail to ensure that anything relating to the AGM was received. I note that the correspondence was in fact not collected by staff of the manager until 11 December 2000. I find it very difficult to accept that the manager seeks to justify this significant delay on the actions of the applicant. Even if the applicant did not follow instructions as per the notice, the evidence is that the correspondence was available for collection on or after the 1 December 2000. Given this, I would have expected that in the ordinary course of events, it should have been collected on Monday 4 December 2000, the day before the meeting. Given this, it is likely that the applicant’s ballot paper should have been included in the count for the committee election.

The second point I note is that the applicant did not make application regarding this matter until some two and a half months after the election, and then states –

The reason I have sought the order about deciding the ballot outcome by chance, is because I have just been informed verbally by another owner that the committee has formally decided to admit and declare counted the ballot paper of the owner of lot 2 ... .

I do not know ... how the owner of that lot voted. However it is noted that the number of votes for the 7^th member declared elected was 31 and for the first unsuccessful candidate was 29.

I simply do not believe the applicant when she states that she did not know how the owner of lot 2 marked their ballot paper. Prior to the decision to admit the ballot paper for the owner of lot 2, this application would have been academic. However with the belated acceptance of that ballot paper for lot 2 by the committee, the vote narrowed to there only being one vote separating successful (Thompson and Kurbatoff) and unsuccessful (Hands) candidates for election. I consider the applicant fully appreciates the effect of inclusion of her ballot paper in the count, and this application was not made without that knowledge, but in fact, when the applicant became aware of the acceptance of the ballot paper of the owner of lot 2. To have shown true bona fides, the application should have been made immediately following the meeting, and in the application the applicant might have queried the validity of the committee’s decision to reject the ballot paper submitted by the owner of lot 2.

It seems to me that both parties are prepared to be less than totally accurate in their material to support their version of events. In my view, both parties have simply used the application process as a means of criticising the other.

In the circumstances, I intend to dismiss the application. Six months have now elapsed since the AGM. Neither of the two successful candidates (Thompson and Kurbatoff) in any way influenced the outcome of the ballot. Moreover, the unsuccessful candidate (Hands) does not appear to have been sufficiently aggrieved to have made application to this office, on the basis of the committee’s handling of the two disputed ballot papers. I do not consider that it is just and equitable in the circumstances to make orders as sought by the applicant. This level of disruption to the body corporate, given the matters in issue, is not warranted some six months after the AGM.
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