Belle Maison [2002] QBCCMCmr 54 (1 February 2002)

RA MeekREFERENCE: 0530-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3862
Name of Scheme:	Belle Maison
Address of Scheme:	129 Surfers Paradise BROADBEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Terrence Pierey Dewley, the company nominee of Yarramalong Investments Pty Ltd, the owner of lots 12 & 72

RA MeekI hereby order that the ruling of the chairperson at the AGM of the body corporate of Belle Maison held on 28 August 2001 that the nomination form received for Berit Dewley on behalf of Yarramalong Investments Pty Ltd was invalid in that the signature of the nominator was not that of an owner or of the company nominee “entitled to nominate candidates for election”, is incorrect, and of no effect.

I further order that Terrence Dewley is the validly elected chairperson of Belle Maison, and is entitled to immediately act in that capacity, with full powers of the chairperson as a member of the committee.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0530-2001

“Belle Maison” CTS 3862

The applicant, Terrence Pierey Dewley, the company nominee of Yarramalong Investments Pty Ltd, the owner of lots 12 & 72, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking an interim order against the body corporate to have the election of myself as chairman re-instated and the decision of the previous chairman, Mr Allen, to dismiss my nomination, revoked.

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)).

The facts of this matter are not in dispute. What is in dispute is the result of the election of the chairperson, and in particular, the validity of that determination.

On 4 September 2001, I made the following interim order -

RA MeekI hereby order that neither candidate for the position of chairperson at the recent AGM of Belle Maison, Messrs T Dewley and W Taylor, shall undertaken the position of chairperson until such time as the final order to this application is made, this application is withdrawn or this order is of no effect by operation of law.

I further order that the position of chairperson shall remain vacant, although at any meeting (committee or general), the role of chairperson (in chairing the meeting) shall be undertaken by the elected secretary until such time as the final order to this application is made, this application is withdrawn or this order is of no effect by operation of law.

The minutes of the AGM held on 28 August 2001 record that the applicant was elected to the position of chairperson over a Mr W Taylor, by a vote of 37 to 35. The chairperson then proceeded to make a ruling that the nomination form received for Mr Terrence Dewley was invalid in that the signature of the Nominator was not that of an owner or of the company nominee “entitled to nominate candidates for election”.



In his grounds, the applicant states –

I believe the conduct of Mr Allen and the secretary Mr Michael Silver in allowing my nomination after the voting has been completed is in breach of the Act. I am a company director and the lot owner of lots 72 and 12, Yarramalong Investments. My wife and myself own the company. My wife nominated me as the nominee for the lot, and to be nominated as chairperson and as a committee member, which is the accepted procedure under the Act.

The applicant claims that “to disallow the nomination after voting has occurred is illegal”. The applicant further claims that his nomination was disallowed “on personal grounds” and would not have been disallowed had the result of the election not been in his favour.

There are two questions for consideration. Firstly, was the ruling by the chairperson to disallow the nomination a valid one. If so, are any of the considerations which the applicant alleges (in particular, the fact that the ballot had already been conducted) sufficient to warrant the invalidation of the ruling in any event.

The chairperson who made the ruling in question has made a submission in response to the application. It is clear from that submission that the chairperson relied on the provisions of section 49 of the standard module as the basis for the ruling. The chairperson states –

The candidate for election must be nominated by the Nominator (of the company lot owner) registered with the body corporate. The applicant Mr TP Dewley is the registered (recorded) nominator of the Company Lot owner; he was the only person entitled under the requirements (regulations) laid down by the Act or the Legislature to nominate the candidate namely Mr TP Dewley for election to office.

The nomination paper completed by BE Dewley is signed by Berit Dewley, claiming to be the person entitled to nominate candidates.

The relevant sections (of the standard module) are section 13 headed “Nominations to committee” and (according to the chairperson) section 49 headed “Meaning of “voter” for general meeting”. I consider that the headings alone are a very clear indication of the purpose of the sections, and their intended application. Section 49 is to do with the entitlement of persons to vote at general meetings. Section 49 provides in part that a “voter” for a general meeting is an individual who is a corporate owner nominee. The section then provides the procedure for nomination of a company nominee. The concept of a company nominee is, as the heading of section 49 suggests, a concept associated with the right to vote at general meetings where the ownership of a lot is in the name of a corporation.

Section 13, headed “Nominations to committee” does not mention “corporate owner nominee”; rather it refers to “a lot owner”. The term “owner” (of a lot) is defined in the Act to mean “the person who is, or is entitled to be, the registered owner of the lot. The provisions of section 13(5) are the relevant procedure for the nomination of a person for election to the committee. That subsection provides –

(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.

Only a lot owner can nominate a person (an individual) for election to the committee. A corporation cannot be a member of the committee. However a corporate lot owner can nominate an individual for election to the committee (as per (b) above). In the case of the nomination in question, I am satisfied that the nomination, which was in writing, was signed and dated by the individual (Terrence Dewley). Further I am satisfied that the nomination form states the “lot owner’s lot number”.

The final requirement is that subsection (5)(b)(ii) be complied with. The subsection requires that nomination form must be countersigned by the lot owner, or a person acting under the authority of the lot owner. The nomination form was signed by Berit Dewley. I am informed that Berit Dewley is a director of the company, Yarramalong Investments Pty Ltd, the corporate owner of lots 12 and 72, and that the directors of that company “holding equal shares, they have the permission of the company to sign independently on behalf of the company”.

The lot owner is Yarramalong Investments Pty Ltd. The nomination form has not been signed under the common seal of that company. However, the subsection further permits the nomination form to be signed by a person acting under the authority of the lot owner. I am satisfied that Berit Dewley is so authorized. I conclude that the nomination form was valid and that the ruling of the chairperson was incorrect. I further intend to order that the applicant is immediately entitled to assume the role of chairperson of the committee.

In the circumstances, it is not necessary for me to consider the second question which I posed; namely if the chairperson ruling was valid, are any of the considerations which the applicant alleges (in particular, the fact that the ballot had already been conducted) sufficient to warrant the invalidation of the ruling in any event.





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