Jadon Place [2002] QBCCMCmr 289 (10 May 2002)

REFERENCE: 0266-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11184
Name of Scheme:	Jadon Place
Address of Scheme:	31 Hooker Drive BROADBEACH QLD 4217

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

Mr Colin Lamont, the Owner(s) of lot 7


I declare that the written nomination of Elaine Rose and Gary Hind for election to the body corporate committee was invalid because the nomination form was not returned by the Secretary by the end of the financial year, namely the 31^st March 2002, in accordance with section 14(4) of the Body Corporate and Community Management (Accommodation module) Regulation 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0266-2002

“Jadon Place” CMS 11184

The applicant Mr Colin Lamont, the Owner(s) of lot 7, has sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“that the nominations of Elaine Rose and Gary Hind for election to the committee of Jadon Place CTS 11184 be declared invalid”

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 applicant states as follows:

“That the nominations of Elaine Rose and Gary Hind for the committee of Jadon Place CTS 11184 be declared invalid because the nominations were submitted five weeks after the closing date for nominations, there was no name of any person nominating these persons and the nomination is not signed.

There is urgency to this application because the final notices for the annual general meeting of Jadon Place CTS 11184 must be sent out by Friday 10th May to comply with the Body Corporate and Community Management Act 1997. I therefore ask that an interim order be made with some urgency. The annual general meeting must be held on 2^nd June. Because the CTS is a time share, it has 340 owners entitled to vote and upwards of one hundred owners from interstate can, and usually do make their bookings well in advance, in order to be present. This can involve discounted non-refundable tickets, time taken from work and a number of other arrangements that it would be unfair to disturb at this stage.

The nominations of candidates form for Jadon Place CTS 11184 was handed to the secretary of Jadon Place on the 5^th May 2002, exactly 5 weeks after the closing date for nominations. I was present and witnessed the handing over of the form.

There are already a full complement of nominations for all positions on the committee including Chairperson and secretary which includes a healthy mix of former committee members and persons who would be new to the committee for 2002-2003. It would be unfair to these candidates who have nominated according to the rules if late nomination were accepted especially without a person qualified to make the nomination signing the form.

Finally the nominations were filled out at the same time when the two nominees met for the first time since February at a meeting at Jadon place on 5^th May but were apparently back dated to 31^st March and then handed to the secretary. It is known that Ms Rose was interstate until 3^rd may, has admitted she did not make arrangements for her notices or any other mail to be forwarded to her before 31^st March and for Mr. Hind to have added his name to her form (and this is obvious from the fact that the words Chairperson, Secretary and Treasurer are all crossed out on the form) he could only have done so when they met at Jadon on the 5^th May. There is almost certainty therefore that the form was falsely dated on 5^th May in order to give the appearance that the nomination was made in due time.

Under normal circumstances the secretary would merely rule the nomination out order however owing to circumstances that are not relevant to this application the secretary feels constrained to risk alienating the nominees because of duress that he feels could be held over him.

This application is to obtain an order that would put the illegality of the matter beyond doubt. A ruling by the adjudicator on this matter would make it clear that the reasons for disallowing the nominations are valid and would at the same time remove any possible recriminations against the secretary in this matter by relieving the secretary of the pressure of having to rule against one of the more outspoken and influential owners.”

This is a scheme to which the provisions of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 apply.

Relevantly, section 14 provides:

(4) Nominations must be received by the end of the body corporate’s financial year.

(5) A nomination must be given in the form of a written notice and, if the nomination is from a lot owner nominating the lot owner, must be signed and dated by the lot owner

Both nominations which have been written on the same form have not been signed by those lot owners whose names appear thereon. To that extent, the nominations are defective for want of compliance with section 14(5).

The body corporate’s financial year is each year ending on the last day of the month containing the anniversary of the first annual general meeting held for the existing plan pursuant to the provisions of section 276(9) of the Body Corporate and Community Management Act 1997 which applies because this scheme was registered in 1981.

The Secretary has advised that, prior to 1992, the annual general meeting was held in March. Consequently, the financial year for this body corporate ends on the 31^st March 2002. As the applicant has stated that he saw the nomination form handed to the secretary on the 5^th May 2002, I find that the nomination was given to the Secretary out of time in reliance upon the statements made by the applicant as detailed above. In that context, it is timely to note that the form was endorsed with the words “to be returned to Jadon Place by 31^st Match 2002.”

For the reasons set out above, I declare that the written nomination of Elaine Rose and Gary Hind for election to the body corporate committee was invalid because the nomination form was not returned by the Secretary by the end of the financial year, namely the 31st March 2002, in accordance with section 14(4) of the Body Corporate and Community Management (Accommodation module) Regulation 1997.

In light of the conclusion to which I have come, it follows that the Secretary of the body corporate should:

•	ensure that the names of Elaine Rose and Gary Hind are not recorded as candidates on the notice of agenda for the annual general meeting.
•	refrain from forwarding written notice to Elaine Rose and Gary Hind acknowledging receipt of the notice of nomination.

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 applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.


Whilst I have granted the application, there are other matters which require comment.

I have granted the application because of the time constraints that apply and the reasons set out above.

Ordinarily, the Secretary should rule the nomination as being out of time. An application for an interim order should only be made when no other course is practicably open and good reason is shown.

Here, the applicant asserts that “Under normal circumstances the secretary would merely rule the nomination out order however owing to circumstances that are not relevant to this application the secretary feels constrained to risk alienating the nominees because of duress that he feels could be held over him.”

When applying for an interim order of this character, full disclosure must be made of all relevant facts. It is for the adjudicator to decide what is relevant and that is a function which should not be usurped by an applicant. The applicant should have disclosed what the circumstances were that warranted this application. If the annual general meeting was not imminent and the deadline for sending out notices was nigh, such an omission may have led to the refusal of the application.

In short, interim applications should only be brought when no other course of action is available and should be brought in strict conformity with the principles set out above.