Admiralty Quays [2001] QBCCMCmr 464 (21 August 2001)

P J HANLYREFERENCE: 0311-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24592
Name of Scheme:	Admiralty Quays
Address of Scheme:	32 Macrossan Street BRISBANE QLD 4000

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

the Body Corporate for Admiralty Quays CTS 24592



I hereby order that motion 7 considered by the body corporate at the annual general meeting held on 30 April 2001 shall be recorded as having been carried by the poll count conducted at the meeting.

I further order that motion 6 considered by the body corporate at the annual general meeting held on 30 April 2001 shall be recorded as having been defeated.





STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0311-2001

“Admiralty Quays ” CTS 24592

The applicant, the Body Corporate for Admiralty Quays CTS 24592, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote:

The decision we require is for your determination on who should be the successful candidate for the position of body corporate manager for Admiralty Quays, for the next three years.

Section 223(1) of the Act 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 provides a background history, and a summary of events at the annual general meeting held on 30 April 2001. The applicant concludes:

We require your ruling on the above voting of motion 6 & 7, which is to determine the preferred body corporate manager for Admiralty Quays for the next three years. The vote was carried for both motions 6 & 7, however the body corporate cannot enter into two contracts for a body corporate manager.

The manager/secretary suggested after motion 6 & 7 were counted, that we refer this to the Commissioner for a decision. The BCC meet at the meeting and recommended this to the owners at the AGM who endorsed the recommendation.

The body corporate manager was invited to respond to the application. A submission was received, in which the body corporate manager stated that placing two motions for the appointment of a body corporate manager on the agenda of the annual general meeting was intended to give owners a choice, but it was not anticipated that both motions would pass. The body corporate manager also noted that 3 votes were accepted from lots owned by corporations, even though no company nominee had been appointed in accordance with sections 49(4) and (5) of the Standard Module.

The Standard Module regulates this scheme. Section 49(1)(b) of the Standard Module defines a “voter” for a general meeting of the body corporate as an individual who is the nominee of a corporation the name of which is entered on the body corporate’s roll as the representative of the owner of a lot. Section 49(4) states that a person is taken to be the nominee of a corporation only if the corporation gives the secretary written notice of nomination, stating the name of the nominee or the names of 2 nominees, 1 of whom is to act in the absence of the other. Section 49(5) stipulates the manner in which the nomination must be given and the information which must be provided.
2n
Section 143 of the Standard Module relates to the keeping of a roll of lots and entitlements. It provides that the body corporate must prepare and keep a roll containing, amongst other things, brief details of all information required to be given to the body corporate in notices given under the Act or the regulation (including in notices given under sections 49 and 50 and under Part 9 of the regulation) including when the information was given.

Lot 21 is owned by Pettigrew Cleaning Contractors Pty Ltd as trustee, and was lodged for registration in the Titles Office on 10 March 1998. Lot 57 is owned by Society of St Paul, and was lodged for registration in the Titles Office on 24 April 1999. Lot 172 is owned by Palmview Estate Pty Ltd as trustee, and was lodged for registration in the Titles Office on 7 May 1998. At the time of the annual general meeting held on 30 April 2001, these three lots had been owned by the present owners for at least two years, and the body corporate should have had the information required under section 49 of the Standard Module on its roll. I note that one of the duties of the present body corporate manager is listed in its management agreement as “maintain(ing) the body corporate roll as required by the Act and Regulations”.

In any event, at the meeting held on 30 April 2001, several persons were present who identified themselves as the nominees of lots 21, 57 and 172 respectively. The chairperson decided to allow these persons to vote from the floor of the meeting, on the understanding that they forward valid corporate nominee forms the following day and that the legality of the action was to be determined by this office.

On 14 August 2001 the body corporate manager informed me in writing that company nominee forms were received on 22 May 2001 from William and Marjorie Pettigrew on behalf of lot 21, and from Margaret Forey on behalf of lot 172. The body corporate manager stated that no company nominee form has been received on behalf of lot 57.

I have perused minutes of the annual general meetings held on 15 April 1999 and on 11 April 2000 respectively, as well as the minutes of the extraordinary general meeting held on 14 December 2000. I note that a voting paper was received from lot 21 and recorded as such in the minutes of the extraordinary general meeting held on 14 December 2000. Pettigrew Cleaning Contractors Pty Ltd as trustee owned Lot 21 at the time of this meeting. There is no record of any earlier attempts by lots 57 and 172 to register a vote at any of the meetings for which I have been provided with minutes, although Mr Colombari was noted as being in attendance at the extraordinary general meeting held on 14 December 2000.

I have decided that the votes for lots 21 and 172 should be accepted for the meeting held on 30 April 2001 because the nominees were present in person at the meeting and were prepared to identify themselves to everyone else present as the nominees of the corporation entered on the body corporate’s roll as the representative of the owner of the lot. Following this, the nominees forwarded company nominee forms to the secretary, albeit not the next day, as the chairperson had requested, but within what I regard as a reasonable time. In addition, the company nominee forms are in the hands of the secretary, before the making of this order. Furthermore, a voting paper has been accepted previously by the secretary on behalf of lot 21. Either a company nominee form was lodged in order for that voting paper to be accepted, or the secretary made a mistake in accepting the voting paper on that occasion. Whatever the case, it would seem inequitable to disenfranchise lot 21 for the annual general meeting held on 30 April 2001, when a voting paper had been accepted at an extraordinary general meeting several months earlier.

In addition, I have distinguished the votes for lots 21 and 172 from the vote for lot 57. I have done so because Mr Colombari has still not forwarded a company nominee form to the secretary, even though he was present in person at the meeting held on 30 April 2001, and knew that his vote was conditional upon his forwarding that form to the secretary.

Having decided that the votes for lots 21 and 172 should be counted, and the vote for lot 57 should not be counted, the voting on motions 6 and 7 will vary slightly, but the result will not. The voting on motion 6 will now be 24 “Yes”, 16 “No”, 8 “Abstain”. On the poll vote for motion 6, it will be 13263 “Yes”, 8911 “No”, 6884 “Abstain”. The voting on motion 7 will now be 22 “Yes”, 20 “No”, 6 “Abstain”. On the poll vote for motion 7, it will be 15151 “Yes”, 11087 “No”, 2820 “Abstain”.

As the fees of both contenders for the position of body corporate manager exceeded the relevant limit for major spending (section 104 of the Standard Module), the body corporate, as required, proposed two alternate motions for the selection of a body corporate manager. In circumstances such as this, the correct procedure is for the vote to be taken on both motions, and then the successful contender will be the one supported by the greater number of “Yes” votes, whether that be by a simple lot count or, as in this case, on a poll count. This method overcomes any concerns owners may have that the incumbent body corporate manager might unfairly influence the outcome of the voting by listing the motion for its reappointment before the motion for the competing contender. However, in order to make it absolutely clear to owners, the body corporate may consider at future meetings that it would be appropriate for such inter-related motions to be clearly identified as such on the agenda and on the voting paper.

At the relevant meeting, persons present requested a poll after the lot votes were counted on motion 6, (see section 100(3)(a) of the Act) and before motion 7 was considered, as prescribed in section 100(4)(a) of the Act. On the basis of the poll, and having regard to my findings in respect of the votes for lots 21 and 172, motion 7 shall now be recorded as having been carried by ordinary resolution, and motion 6 shall be recorded as having been defeated. I have ordered accordingly.