The Breakers [2001] QBCCMCmr 85 (14 February 2001)

RA MeekREFERENCE: 0629-2000

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

William Alexander Tapp, the company nominee of Pujuri Pty Ltd, the owner of lot 63



RA MeekI hereby order that the application by William Alexander Tapp, the company nominee of Pujuri Pty Ltd, the owner of lot 63, for an order that the motion to extend the management and letting agreement for 4 years to 2010, which was considered at the AGM of the body corporate held on 5 December 2000, be by secret ballot, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0629-2000

“The Breakers” CTS 13261

The applicant William Alexander Tapp, the company nominee of Pujuri Pty Ltd, the owner of lot 63, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Interim order for a motion to extend management and letting agreement for 4 years to 2010 be by secret ballot.

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 the supporting grounds, the applicant states that there is a conflict of interest as the Secretary is the owner of the agreement and controls renting in the building. The applicant further states –

... the committee body corporate is locked 3 for and 3 against secret balloting for motions with potential conflict. I would seek an order to unlock this deadlock and let renters of units in the Breakers vote without the secretary manager knowing how they wish to vote.

The application seeking this order by way of interim order was dismissed. In the reasons for the interim order I commented –

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course. I am fully aware that the final order to this application is likely to be made following the meeting on 5 December 2000, and given this, it may be that no final order is necessary or appropriate. I will further consider this matter at that time. However this does not alter the fact that this matter is not appropriately the subject of an interim order. Rather the applicant seeking final relief or a final determination of the matter urgently.

I have since been advised that the motion in respect of the Management and Letting Agreement was carried at the AGM of the body corporate held on 5 December 2000 by a margin of 34 votes in favour with 23 against.

If I were satisfied that the vote on the motion was somehow improper or irregular, or that for whatever reason, it was just and equitable to order that the resolution be invalidated, then I might so order. Further, I might then order that a further motion be considered, to be decided by secret ballot, as the applicant sought by way of interim order.

I have considered the submissions received in respect of the application. There is no doubt expressed that the committee voted 3:3 (a tied vote) in respect of the presentation of motion 10 (the variation of the term of the Management and Letting Agreement) by way of secret ballot. A tied vote means that the motion failed, and the consequence of this is that the motion proceeded to the general meeting to be determined in the usual way (ie. no secret ballot).

Section 53(1) provides that the section applies if the committee recommends that a motion be decided by secret ballot. The committee of this body corporate did not so resolve.

I have not been provided with any compelling argument or evidence why I should overturn the tied vote of the committee on the question of a secret ballot in respect of this motion, and order as suggested above. In particular, it has not been asserted that the manager in any way sought to exert improper influence over owners in casting their vote in respect of the motion. Yes it is easy to allege that given the managers knowledge of how owners voted, there might have been implications for particular owners given the way they voted. However there is not even a suggestion of this.

As for the conflict of interest allegation, as I understand it the manager who is the beneficiary of the resolution is a non-voting secretary for the committee. The conflict of interest provisions relate to voting in committee meetings in respect of matters where the committee member has a conflict of interest. The secretary did not vote, and no question of conflict of interest, as it is dealt with in the legislation, arises.

I consider this to be an internal body corporate matter. It is for a committee to decide if a motion should be the subject of a secret ballot. The committee did not resolve this in respect of the motion in question, and I see no reason why I should now intervene. This application is dismissed.



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