Cairns Aquarius [2001] QBCCMCmr 305 (6 June 2001)

RA MeekREFERENCE: 0702-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1439
Name of Scheme:	Cairns Aquarius
Address of Scheme:	107 The Esplanade CAIRNS QLD 4870

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

Albert Finlay Marshall and Annette Patricia Marshall, the owners of lot 3



RA MeekI hereby order that the application by Albert Finlay Marshall and Annette Patricia Marshall, the owners of lot 3, for orders that –

1. if motion 11 on the agenda of the AGM (adopting of community management statement) is passed, that it be declared void for irregularity;

2. that the election of the committee be declared void for irregularity and Cairns Body Corporate Management be required, within 2 month of the date of the order, to conduct the election of the committee in accordance with the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 1997,

is dismissed. y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0702-2000

“Cairns Aquarius” CTS 1439

The applicants Albert Finlay Marshall and Annette Patricia Marshall, the owners of lot 3, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

... if motion 11 on the agenda of the AGM (adopting of community management statement) is passed, that it be declared void for irregularity.

... (that) the election of the committee be declared void for irregularity and Cairns Body Corporate Management be required, within 2 month of the date of the order, to conduct the election of the committee in accordance with the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (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 respect of the first order sought, the relevant motion was not carried at the AGM of the body corporate held on 15 December 2000, and consequently no further consideration of this matter is required.

I note that the committee has concluded its submission in respect of this aspect with –

In the circumstances, the committee believes that the only practical way in which a new CMS will be adopted is by order of the commissioner.

I expect that the committee appreciate that this office will not be proceeding to investigate the making of the order suggested or proposed by it unless and until such time as a formal application is made to this office concerning this matter.

I now turn to the second order sought by the applicants; namely that the election of the committee be declared void for irregularity. The grounds submitted in support of this order sought are brief; namely that lot owners have not been given the opportunity to participate in the election of the committee. The grounds further states that –

No ballot paper was enclosed with the notice of meeting. Therefore lot owners who are not able to personally attend the meeting will be disenfranchised as they will not have an opportunity to participate in the election of the committee, given that a proxy cannot vote on a ballot for the election of a member of the committee ...

The committee has responded –

It is conceded that no separate ballot paper for the election of the committee was included in the documents accompanying the notice of meeting. However, it is submitted that the information contained at the end of the voting paper for the meeting, setting out the nominations in their correct order, is sufficient to enable a lot owner to vote for his or her preferred committee by appropriately marking that voting paper. A separate voting paper which fully complies with the requirements of the standard regulation module, has now been forwarded to all lot owners.

The applicant’s responded to this aspect as follows –

Even though the documents were eventually sent to lot owners, they were not given in accordance with the provides of the (Act) and the regulation module applying to the scheme nor were they given within sufficient time to enable lot owners to consider the matters, record their vote and post the voting papers back to the body corporate prior to the AGM.

In this statement, the applicants are referring to matters relating to motion 11, as well as to the election. In respect of the election is was the ballot paper which was not sent initially, but which was sent prior to the meeting being held.

I have sighted the ballot paper for the committee election which was belatedly sent to owners.

It is clearly a requirement of the standard module that the ballot papers for the committee election must be forwarded with the notice of AGM (see sections 16(6) and 17(6)).

In a subsequent submission, the committee has requested that “... if the Commissioner is minded to set aside the election of the committee conducted on 15 December 2000 and order that a fresh election be conducted, the commissioner indicate whether fresh nominations are to be called for the election, or whether the election is to proceed on the same nominations as were received for the 15 December 2000 meeting.

I have endeavoured to ascertain the time differential between the date of sending of the original notice, and the date of sending the subsequently ballot paper. However, this information was not available from the records according to the incoming body corporate manager. I did manage to obtain a copy of the minutes of the AGM though.

I am not prepared to order that the election of the committee is invalid, and further, to require that a fresh election be held. It has now been almost 6 months from the date of the AGM, and presumably the next AGM, and a committee election, will be held around December this year. If a fresh election were to be ordered now, allowing for nominations, then notice, it is likely that the best part of another two months would have passed. This practically would mean that any new committee elected would only be in place from say early August to mid December or thereabouts. In my view, the cost and level of disruption to the body corporate is not warranted in the circumstances when measured against the aspect of non-compliance complained of, which I note was belated corrected in any event. Further, I have not been provided with any evidence to show that any owners were seriously affected by the non-compliance complained of, or specifically, were denied an opportunity to participate in the ballot for the election of the committee. Accordingly I have dismissed the application.

y