Runaway Heights One [2001] QBCCMCmr 36 (29 January 2001)

P J HANLYREFERENCE: 0093-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20967
Name of Scheme:	Runaway Heights One
Address of Scheme:	601 Pine Ridge Road, Biggera Waters Q 4216

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

Kenneth Dale Armstrong company nominee for Warrego Petroleum Pty Ltd, the owner of lot 29



P J HANLYI hereby order that the secretary of the body corporate shall forthwith forward to all lot owners fresh voting papers in the correct format for the Annual General Meeting to be held on 10 March 2000.

I further order that any voting paper which is submitted by a lot owner, whether it be the original voting paper or the fresh voting paper ordered above, shall be valid, provided the voting intention of the lot owner can be clearly ascertained from that voting paper, and further provided that all other pre-requisites for voting have been satisfied.

I further order that a copy of this order shall be forwarded by the secretary to all lot owners with the fresh voting paper ordered above.2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0093-2000

“Runaway Heights One” CMS 20967

The applicant Kenneth Dale Armstrong company nominee for Warrego Petroleum Pty Ltd, the owner of lot 29, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

(a)	That owing to the absence of appropriate notice to owners, the committee meeting dated 11 February 2000 and resolutions made at that meeting be declared invalid.
(b)	That these motions included on the agenda of the Annual General Meeting to be held on 10 march 2000 be withdrawn.
(c)	That the matter of payment of a relevant amount into the body corporate sinking fund for the transfer of the rights under the existing agreements which are less than 3 years old needs to be considered by the owners in conjunction with the sale of the management rights.
(d)	That expenditure from the administrative and sinking funds not include work done on lots except that allowed under the BCCM (Standard Module) Regulation 1997.
(e)	That the existing and the proposed caretaking agreements given to owners contain clauses which are in conflict with the BCCM (Standard Module) Regulation 1997 and as such cannot be validly voted upon until remedied in an equitable manner.

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

That voting on all motions being put to the forthcoming Annual General Meeting on 10 March 2000 cannot properly be determined and therefore be invalidated.

Section 225(1) of the Act 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 the supporting grounds in respect of the interim order, the applicant states that the voting papers prepared by the body corporate manager contain accompanying instructions that direct the voter to indicate a vote that cannot be adequately determined. The applicant expresses the view that if owners were to follow the instructions, the chairperson of the meeting would be unable to properly declare the result of the vote on all motions. The applicant also expresses the view that such a voting paper provides an opportunity for someone else to manipulate the voting outcome after the voting paper is received by the secretary.

Pursuant to the powers delegated to me by the commissioner under section 189 of the Act, I am satisfied, under section 194(5) of the Act, that there is good reason for dispensing with the requirement to give notice of this application, insofar as it relates to the interim order only, to each affected person and to the body corporate. It is apparent that the voting paper which has been prepared by the body corporate manager will lead to uncertainty in voting, if the instructions on the voting paper are followed. On each motion owners are provided with three possibilities for voting, namely to register a “Yes” vote, or to register a “No” vote, or to abstain from voting. This is necessary to meet the requirements of section 56(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 which provides as follows:

When declaring the result of voting, the person chairing the meeting must state-

(a)	the number of votes cast for the motion; and

(b) the number of votes cast against the motion; and

(c)	the number of abstentions from voting on the motion.

The instruction on this voting paper, however, is “Those in favour, cross out no.” This means that an owner who is in favour of the motion, and who crosses out “No”, will leave two possible interpretations of their vote, namely “Yes” or “Abstain”. Equally, an owner who is not in favour of the motion, and who crosses out “Yes” will still leave two possible interpretations of their vote, namely “No” or “Abstain”. It may well be that some, if not all, owners, will have realised that the instruction on the voting paper is misleading, and will have registered votes which are clearly ascertainable. However, I am not prepared to make such an assumption, in case there are voting papers on which the instruction has been followed exactly. I therefore propose to order that fresh voting papers be sent to all owners forthwith, together with a copy of this order. I have ascertained from the body corporate manager’s office that there is one lot owner living in the United States of America, but all other lot owners live in various parts of Australia. Provided amended voting papers are sent out today, then they should arrive to all lot owners on Monday 6 March or Tuesday 7 March. That will then allow for sufficient time for owners to either post them back to the secretary, or fax them back. In the case of the owner living in the United States, the secretary should take all reasonable steps to contact that owner by telephone to ascertain if there is a fax number to which the voting paper could be sent. I have decided not to postpone the meeting, as I consider that at this late stage it may cause financial hardship or inconvenience to owners who may have made travel plans which cannot be changed (advance purchase airfares, accommodation bookings etc.). I have also decided not to invalidate all motions on the agenda of the meeting, as I am not satisfied that there is presently the need to do so. However, after the meeting, if I am provided with further evidence that there was such confusion caused in the minds of owners by the voting papers, and that the voting process has thereby been irretrievably flawed, I may make a further order in respect of the voting.

I also propose to order that any voting paper already returned by owners from which a vote can be clearly ascertained shall be deemed to be a valid vote, provided that all other pre-requisites as to voting have been satisfied. There are a number of ways by which a vote may be clearly ascertained. An owner may have deleted two of the three words available to register a vote, thereby allowing the vote to be ascertained. An owner may also have deleted all words shown, and written something like “I am in favour of this motion”, or “I am not in favour of this motion”. An owner may also have deleted all words shown, and written, in relation to motion 3 for example, “I do not accept the administrative fund budget”. There are endless possibilities for an owner to record a vote which is clearly ascertainable. I have given these few examples simply for guidance, and in the hope that there will not be further applications to this office to make a ruling on the validity of a voting paper.

The remaining orders sought by the applicant will now be investigated in accordance with the usual processes undertaken by this office. Final orders regarding the application will be made in due course.