Federation Court [2001] QBCCMCmr 514 (21 September 2001)

P J HANLYREFERENCE: 0564-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19618
Name of Scheme:	Federation Court
Address of Scheme:	32 Government Road LABRADOR QLD 4215

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

George Brian Miller and Stephanie Ann Miller, the owners of lot 6



I hereby order that the purported election of Mrs Nicole Dowdle to the body corporate committee as treasurer and secretary is invalid.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0564-2001

“Federation Court” CMS 19618

The applicants, George Brian Miller and Stephanie Ann Miller, the owners of lot 6, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the nomination of Mrs Nicole Dowdle for the position of secretary and treasurer of the committee of the body corporate for Federation Court ... be declared invalid....

The applicants have also sought an interim order of an adjudicator in similar terms.

Exercising the power delegated to me by the Commissioner (section 189 of the Act) I have decided there is good reason to dispense with the requirement to give notice of this application for the purposes of the interim order (section 194(5) of the Act).

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, the applicants state that Mrs Dowdle is an employee of the body corporate manager and has not been nominated personally by any owner. The applicants state that this is contrary to the Standard Module.

The meeting in question has been called pursuant to an order of this office. The order made by the adjudicator on 2 August 2001 was as follows:

I hereby order that Professional Body Corporate Management Pty Ltd (the appointee) of Suite 1, Strathhaird Road, Bundall QLD is appointed to call, hold and chair a general meeting (the meeting) of Federation Court within three (3) months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting, and the election of the executive members of the committee and the ordinary members of the committee, if any, who shall hold such positions, subject to section 25 of the Body Corporate and Community Management (Standard Module) (the standard module), until the next annual general meeting is held.

I further order that, for the purposes of convening, holding and chairing the meeting, the appointee shall have all the powers, authorities, duties and functions of the chairperson, secretary and treasurer of the body corporate, with the exception of the following powers -

a)	to further delegate any of those powers, authorities, duties and functions to another; or
b)	to make any decision on a restricted matter within the meaning of section 26 of the standard module; or

c) to incur expenditure, in respect of a single project, beyond the relevant limit for committee spending.

I further order that within seven (7) days of the appointee receiving a copy of this order, the appointee must give a copy of this order to each person whose name appears on the roll as the owner of a lot included in the scheme (lot owners).

I further order that lot owners shall have the right to submit to the appointee, motions for inclusion on the agenda for the meeting; and

a)	if the lot owner is an individual - to nominate the lot owner or another individual for election as a member of the committee; and
b)	if the lot owner is not an individual - to nominate an individual for election as a member of the committee;

Provided that

a)	the motions and / or nominations are received by the appointee within fourteen (14) days days from the date of this order; and
b)	the motions and / or nominations are otherwise in accordance with the requirements of the standard module;

then the appointee shall include the motions on the agenda of the meeting, or nominations on the ballot for election as members of the committee.

I further order that the appointee shall not give notice of the meeting until after the expiration of fourteen (14) days days from the date of this order.

I further order that -

a)	at least twenty-one (21) days notice of the meeting must be given to lot owners,
b)	notice of the meeting is to be given in accordance with section 42 of the standard module;
c)	the agenda of the meeting must include the items set out in section 45(2) of the standard module, and the meeting may determine any other motion validly before it;
d)	the procedure for the conduct of the election for the committee at the meeting shall be by open ballot in accordance with section 17 of the standard module; and
e)	except as provided for in this order, the meeting and all related matters must be conducted in accordance with the standard module.

I further order that the appointee shall hold the appointment for the period beginning from the date of this order until the completion of the meeting.

The nominations for committee positions should have complied with the requirements of the Standard Module. Section 13 of the Standard Module provides as follows:

Nominations to committee

13.(1) This section states how individuals are nominated for election

(other than an election held at the first annual general meeting for the

scheme) as chairperson, secretary, treasurer or ordinary member of the

committee.

(2) The secretary must serve notice on each owner shown on the body

corporate’s roll, inviting each lot owner—

(a) if the lot owner is an individual—to nominate the lot owner or

another individual for election as a member of the committee; and

(b) if the lot owner is not an individual—to nominate an individual

for election as a member of the committee.

(3) The notice must be given at least 3 weeks before, but not earlier than

6 weeks before, the end of the body corporate’s financial year.7

(4) Nominations must be given to the secretary by the end of the body

corporate’s financial year.

(5) A nomination must be given in the form of a written notice and—

(a) if the nomination is from a lot owner nominating the lot

owner—must be signed and dated by the lot owner; or

(b) if the nomination is from a lot owner nominating an individual

other than the lot owner—

(i) must be signed and dated by the individual; and

(ii) must be countersigned by the lot owner, or a person acting

under the authority of the lot owner; and

(iii) must state the lot owner’s lot number.

(6) A nomination must contain the following—

(a) the surname and either the first given name or other name or

abbreviation by which the nominated person (the “candidate”) is

generally known;

(b) the position or positions the candidate is nominating for;

(c) if the nomination is for secretary or treasurer—

(i) whether the candidate is the owner of a lot; and

(ii) if the candidate is not the owner of a lot but is nominated

because of the candidate’s duties as the employee of, or

provider of services to, another person—the other person’s

name.

(7) As soon as practicable after receiving a nomination under this section,

the secretary must forward written notice to the candidate acknowledging

that the nomination has been received.

I have been provided with copies of the nomination forms submitted to the administrator. Clearly Mrs Dowdle has not been nominated for the position of secretary and/or treasurer. A body corporate management company cannot be nominated for a position as a member of the committee, as the nomination must be of an individual.

I have therefore ordered that Mrs Dowdle’s purported election as secretary and treasurer of the body corporate committee is invalid. Since there were no other nominations for those positions, then the administrator will be required to call for nominations for those positions from the floor of the meeting.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the parties consider that an appeal of this decision is warranted, then they should appeal the interim order.