Jadon Place [2003] QBCCMCmr 137 (25 September 2003)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Wilma Jaggers, a Co-owner of Lot 5:

I hereby order that the application for an order that the extraordinary general meeting of the "Jadon Place" Body Corporate held on 2 February 2003 ("the EGM") is void for irregularity, is dismissed on the basis that the dispute should be dealt with by a court of competent jurisdiction.

I further order that the application for an order that the purported resolutions of the Body Corporate at the EGM were at all times void, is dismissed on the basis that the dispute should be dealt with by a court of competent jurisdiction.

I further order that the application for a recommendation that future general meetings be supervised by an independent returning officer, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0102-2003

"Jadon Place" CTS 11184

"1. The EGM of 2^nd Feb 2003 should be declared illegal as the documents required under section 53 were not present at the meeting.

The reference to section 53 in the first order sought by the Applicant is a reference to a section of the Act’s Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module") that requires body corporate secretaries to have particular documents available for inspection by voters for a general meeting.

Section 276(1) of the Act allows adjudicators to make just and equitable orders to resolve disputes in community titles schemes about-

An adjudicator’s order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Department of Natural Resources and Mines ("NRM") records show that the "Jadon Place" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 20 March 1981. A new community management statement for "Jadon Place" was recorded on 20 July 1999 and indicates that the Accommodation Module applies to the scheme.

While "Jadon Place" physically consists of 16 lots and common property, almost all of the lots included in the scheme are the subject of time-share arrangements. While it appears that the Body Corporate and Community Management legislation applies to "Jadon Place", these time-share arrangements appear to result in a number of difficulties and challenges for the Body Corporate in complying with the terms of the legislation. I will make further comments on this issue below in Time-Share Issues.

This dispute resolution application was made on 14 February 2003. On 26 February 2003, the Commissioner for Body Corporate and Community Management ("the Commissioner") invited the Committee for the Body Corporate, and all owners of a lot included in the scheme, to make a written submission about the application. The Commissioner extended the time for making written submissions about the application on 28 February 2003.

The Body Corporate Chairperson (also a co-owner of Lots 2 and 3), Secretary (also a co-owner of lots 7, 8 and 16) and two ordinary committee members (co-owners of lots 13 and 15 respectively) have made written submissions about the application, as have a number of other co-owners of lots in the scheme. I also note at this point that a statutory declaration by Mr Anthony Djurovitch (who was present at the meetings in question) accompanies the Secretary’s submission.

The Applicant obtained copies of the submissions pursuant to the then section 196 of the Act^[1]. The Applicant has provided a written reply to the submissions by way of a letter dated 11 April 2003. In addition, as part of her reply to submissions, the Applicant has also provided an audio recording, purportedly of the extraordinary general meeting of 2 February 2003.

The Body Corporate Secretary has been provided with a copy of the audio recording presented by the Applicant, and for reasons outlined in his facsimile of 21 May 2003, objects most strenuously to its acceptance and consideration in the context of determining this application. I will comment on this aspect of the dispute below.

On 29 April 2003, the Commissioner made a dispute resolution recommendation that the application should be resolved by departmental adjudication. The Commissioner has referred the application to me for determination.

I have before me a facsimile of 22 June 2003 from the Secretary indicating that the Body Corporate had held its annual general meeting, and carried a further motion concerning the management and letting agreement. As indicated to the parties in my letter of 25 June 2003, I note the Secretary’s opinion that this dispute resolution application is now "superseded", however in my view, I have a continuing duty to determine the application until it is either finalised or withdrawn.

As mentioned previously, most lots included in the "Jadon Place" community titles scheme are subject to time-share arrangements. In general terms, lots included in the scheme are owned by a number of people as tenants in common. For example, NRM records indicate that each of the lots (except for Lot 6) have between 21 and 38 title references allocated to them. It appears that the interest recorded on each title reference entitles the registered owner or owners to a proportionate number of weeks of use of the particular lot, on an annual basis.

For voting purposes, I understand that owners at "Jadon Place" have traditionally been allocated "one vote per week of ownership". For example, the minutes of the 2 February 2003 extraordinary general meeting indicate that 311 votes were counted for motion 1, and 307 votes were counted for motion 2, notwithstanding that there are physically 16 lots included in the scheme.

In a previous determination of a dispute resolution application concerning "Jadon Place" (reference 0037-2003), I expressed concern that the method of counting votes adopted by the Body Corporate appeared to be contrary to the provisions of the Act. However, given that application 0037-2003 concerned the calling of a general meeting (and not the results of voting at the meeting), and as the parties did not raise the issue of vote counting procedures adopted by the Body Corporate, I declined to make a determination of the point at that time.

After reading the material submitted in relation to the current application, I wrote to the Applicant and the Body Corporate on 25 June 2003. In my letter, I again expressed concern that the method of counting votes adopted by the "Jadon Place" Body Corporate appeared to be in conflict with the provisions of the Act, particularly sections 105(2), 106(2), 107(2), 108(2) and 110(2). In general terms, these sections provide that one vote only may be exercised for each lot included in a community titles scheme for motions to be decided by the various forms of body corporate resolution.

In my letter, I also expressed concern about the effect of section 50(4) of the Accommodation Module, which provides that "(n)o vote may be counted for a lot on a motion if there is a conflict between the votes of the co-owners of the lot." It seems to me that this provision has the effect of allowing a vote for a lot on a particular motion, provided that none of the co-owners disagree with the voting position of the other co-owners concerning the motion. This raises obvious difficulties for lots co-owned by a large number of people.

The issues raised in my letter were not directly raised by the parties to this application. However, given that the application does concern vote counting procedures (albeit not the issue of the number of votes allowed for each lot), and given that the Applicant has sought an order concerning the motions carried at the meeting, I did not consider that it would be proper for me to simply ignore these significant, and in my view, fundamental matters.

On this basis, in my letter of 25 June 2003, I invited the Applicant, and the Body Corporate to provide me with "a written statement explaining a basis in law, which validates the voting system adopted by the "Jadon Place" Body Corporate". I further requested that the statement focus on the provisions of the legislation identified in my letter, and be supported by appropriate authorities. In my letter, I also made it clear I appreciated the practical rationale for the system adopted by "Jadon Place", and that I was mindful of the serious potential impacts of an adverse finding about the voting system adopted by "Jadon Place" for the Body Corporate, and other schemes subject to similar time-share arrangements.

The Applicant replied to my request by way of a letter dated 4 July 2003. In her letter the Applicant states that in making the application, she was "not questioning the legality of the voting system in operation at Jadon Place" and that she had "nothing to offer on the matter of whether that system is right or wrong".

The Body Corporate Secretary replied to my letter by way of facsimile dated 12 August 2003. I should point out however that the Secretary replied not as Secretary of the "Jadon Place" Body Corporate, but as the Chairperson of a lobby group identifying itself as the Body Corporate Act Legislative Review Committee. In the facsimile to me, the Secretary states that "I write to you in my capacity as chairman of the above committee having referred the matter to myself as chairman of the committee from my position as secretary of Jadon. I will respond as secretary of Jadon in due course when I have consulted the Jadon committee". However, I also note that in an email of 24 August 2003, the Secretary confirms that the majority of committee members agree with the comments made in his facsimile of 12 August 2003.

Regardless of the capacity in which the Secretary was purporting to respond to my letter, it is clear that the Secretary intended for me to consider this facsimile in the context of determining this dispute resolution application. I have done so, but am mindful that the letter does not, and does not purport to, necessarily represent the views of all owners or all committee members.

I must say that I found many of the statements contained in this facsimile to be threatening (toward myself, the Commissioner, and this Office), misconceived, and inappropriate. Perhaps more importantly, the facsimile provides virtually no assistance to me in terms of the questions posed in my letter to the parties. However, putting aside these matters, I do consider that the Secretary’s concern that the issues raised in my letter are beyond the scope of the original application does have merit. I also appreciate and share the Secretary’s concerns about the ability of bodies corporate that are the subject of time-share arrangements to comply with the terms of the legislation as currently drafted.

Neither responses to my letter have assisted me establish whether or not the fundamental aspects of the system of counting votes adopted by "Jadon Place" can be justified at law. However, I do accept that the issues raised in my letter were not directly and explicitly raised in the application, and I am mindful that neither the Applicant nor the Body Corporate have expressed a desire for me to make an assessment of the issue of the number of votes allowed per lot at "Jadon Place". In addition, as the matters raised in my letter have not been presented to all owners for their consideration and submission, it is certainly arguable that it would be a denial of procedural fairness to those owners for me to make an assessment (particularly resulting in an adverse determination) of this matter.

On this basis, I will not make an assessment or determination of the issues raised in my letter to the Body Corporate and the Applicant concerning voting processes adopted by the "Jadon Place" Body Corporate in the context of this application. I will restrict my determination to the issues directly raised by the parties. However, I hasten to add that this should in no way be taken as any form of warranty of the system of voting adopted by the "Jadon Place" Body Corporate. If the matter of the number of votes exercised for lots included in the scheme is raised in a future dispute resolution application, it may be necessary for an adjudicator to make a determination of the issue.

As stated previously, this application concerns issues surrounding the extraordinary general meeting of the "Jadon Place" Body Corporate held on 2 February 2003. The relevant agenda shows that there were two matters proposed for owners’ consideration at the meeting. The first motion proposed that the Body Corporate enter into a new management and letting agreement with the current Caretaking Service Contractor. The second motion proposed that the Body Corporate "re-affirm" a previous election of committee members. The minutes of the meeting show that both motions were carried at the meeting.

The Applicant objects to the resolutions of the meeting, and the meeting itself, on two main grounds. Firstly, the Applicant considers that certain documents were not available for inspection by voters either at the meeting itself, or at a preliminary "scrutineer’s meeting", contrary to section 53 of the Accommodation Module. Secondly, the Applicant considers that a number of voting papers and proxy forms were improperly excluded from the meeting. On the basis of these objections, the Applicant has sought orders that the extraordinary general meeting itself, and motions carried at the meeting, are void. Additionally, the Applicant has sought an order recommending that all future general meetings of the Body Corporate be supervised by an independent returning officer.

After carefully reviewing the material before me, I have decided to dismiss the application for orders concerning the 2 February 2003 meeting on the basis that the matters should be dealt with in a court of competent jurisdiction (section 270(1)(b) of the Act). My full reasons for this decision are outlined below in Determination, however, in general terms I am simply not confident that the legislation provides me with adequate powers to fairly and effectively test the significant inconsistencies in key statements made by parties to this dispute. I have also dismissed the application for an order recommending the appointment of a returning officer, but for different reasons, as outlined below.

Section 53 of the Accommodation Module imposes an obligation on body corporate secretaries to have particular documents available for inspection by voters for a general meeting. Specifically, section 53 provides:

It seems obvious that the main purpose of this provision is to enable voters for a general meeting to satisfy themselves that persons exercising a vote at the meeting are properly entitled to do so. One of the key questions raised by this application is whether or not this seemingly straightforward requirement was met in relation to the 2 February 2003 meeting.

From the material before me, I understand that a meeting described as a "scrutineer’s meeting" was held immediately prior to the actual extraordinary general meeting. The purpose of this scrutineer’s meeting appears to have been to verify and count postal votes submitted for the extraordinary general meeting, and to check the validity of proxy forms that had been submitted in relation to the meeting.

From the material I understand that five people were permitted to be present at the "scrutineer’s meeting", which was held in a small office at "Jadon Place". The persons present at the meeting were the Chairperson, the Secretary, the Applicant (who is also an ordinary committee member), another ordinary member of the Committee, and Mr Anthony Djurovitch.

While it is not a crucial issue in my determination of this application, I do wish to place on record that I am somewhat unclear as to Mr Djurovitch’s role and capacity to attend both the scrutineer’s meeting, and the actual extraordinary general meeting. In his statutory declaration, Mr Djurovitch indicates that he was approached by the Secretary to act as "an independent adjudicator" for the meeting. While "adjudicators" are appointed for dispute resolution purposes under the Act, the legislation does not use the term "adjudicators" in the sense described by Mr Djurovitch.

Initially, seemed to me that Mr Djurovitch’s role was that of a returning officer as contemplated by section 52 of the Accommodation Module. Section 52 allows a body corporate to "appoint a returning officer to decide questions about eligibility to vote and voting entitlements, and to count the votes". This is supported by a statement in the minutes of the meeting that Mr Djurovitch "attended professionally to rule on validity of votes and legality of process". However, from the Secretary’s submission, it seems that the Secretary was considered to be the returning officer (although, I am unable to find confirmation in the material that the Body Corporate made this appointment), and that Mr Djurovitch was simply making recommendations to the Secretary about the validity of voting papers and proxies. I also note that the minutes of the meeting describe Mr Djurovitch as a "Legal Consultant" for the purposes of the meeting.

Therefore, for the purposes of my determination, I will simply consider Mr Djurovitch to be an advisor to, and observer of, the scrutineer’s meeting, and extraordinary general meeting.

In many instances, particularly in the case of large bodies corporate, body corporate managers, secretaries, and committees count voting papers received by mail, prior to the commencement of the relevant meeting. The primary rationale for this practice is expediting the conduct of the meeting.

The difficulty with this practice is that it is not specifically contemplated by the legislation, and as a result, owner’s rights regarding these preliminary counts are somewhat unclear. In this instance, the Applicant claims that the documents required to be present at the extraordinary general meeting were not present at the scrutineer’s meeting. While not conceding the point, the Secretary points out in his submission that "there is nothing in Division 3 of the Accommodation module or at any other place in the Act of (sic) module that gives a scrutineer rights to demand anything at a preliminary count, rolls, ice creams or tender loving care. The claim that one of these was denied on this occasion, even if true, does not constitute a cause for invalidating an EGM."

Putting aside the unhelpful sarcasm, in my view there is some merit in this argument. While section 53 of the Accommodation Module clearly provides voters for a general meeting with a right to inspect the specified documents at the general meeting, it is not clear that the provision is intended to operate outside of the actual meeting.

I have not been presented with a convincing argument by the Applicant that a right under section 53 can be enforced outside of a general meeting. Furthermore, I am concerned that adopting a broad interpretation of section 53 may be unworkable and problematic. For example, in most cases proxy forms and voting papers may be handed to the secretary immediately prior to the commencement of a general meeting. Therefore, it may be impossible to allow a voter full and complete access to the section 53 documents prior to the commencement of the meeting. Similarly, the list of persons entitled to vote at the meeting can be the subject of last minute changes if voters pay any outstanding contributions immediately prior to the meeting.

While I am not satisfied that the Applicant has established a right to inspect documents pursuant to section 53 outside of an actual general meeting, I must say that in the absence of access to the section 53 documents I see little purpose in the so-called scrutineer’s meeting. For example, I fail to see how the Applicant, or any other "scrutineer", could be expected to verify or confirm the validity of a postal vote without being permitted to inspect the vote itself, the roll, and the list of people with a right to vote. Although, as I stated previously, the Secretary (and Chairperson and Mr Djurovitch) deny that the Applicant was restricted from inspecting these documents.

However, as stated previously, this type of meeting or preliminary count is not contemplated by the legislation, and at this time I am not convinced that the Applicant has a statutory right to require access to documents pursuant to section 53 prior to the commencement of the actual general meeting. As a result, I would not invalidate the extraordinary general meeting, or resolutions of the meeting, on the basis that the Applicant was not provided with access to the section 53 documents at the scrutineer’s meeting.

If I understand his submission correctly, the Secretary considers that this dispute resolution application is limited to the issues arising at the scrutineer’s meeting. I do not consider that the application is limited in this respect. The order sought by the Applicant clearly asserts that the section 53 documents were not available at the extraordinary general meeting.

In his submission, the Secretary makes very clear statements that no person at the meeting requested access to the documents required to be available at the meeting pursuant to section 53 of the Accommodation Module. In this respect, I note the following statements of the Secretary:

In her reply to the Secretary’s submission, the Applicant indicates that these statements are simply untrue, and that at least three people asked to inspect the roll at the meeting. To support her claim, the Applicant has provided an audio recording, purportedly of the extraordinary general meeting in question. As mentioned previously, the Secretary has strenuously objected to this recording being included as evidence in this determination. I have not listened to the recording to date, and for the reasons outlined below, I do not consider doing so will assist me determine this application.

The Secretary has presented a number of arguments as to why I should not consider the recording in determining this application. Firstly, the Secretary argues that the recording is irrelevant because it purports to be a recording of the extraordinary general meeting, whereas this application concerns the scrutineers meeting. As stated above, I do not consider that this application is limited in this respect. The Secretary’s second objection to the recording is that it is "unofficial" and that there was no "official" recording of the meeting. The Secretary has not clearly explained why this is a basis for refusing to consider the recording.

The Secretary’s third objection to the recording is that it was illegally obtained, and on this basis, is inadmissible. I also note that the Secretary has provided written legal advice from Mr Alan Barrell of Barrell Lawyers who among other things, states that "it would be highly improper for a judicial or quasi-judicial body to accept a tape recording of persons made without their prior knowledge or consent." Neither the Secretary, nor his legal advisor, has provided an authority supporting the view that the recording is "illegal". Furthermore, neither has provided any authority for the assertion that improperly or illegally obtained evidence is inadmissible.

My understanding is that evidence is not necessarily inadmissible on the basis that it was improperly or illegally obtained, and the relevant decision-maker has discretion to decide whether or not to accept it.^[2] On the basis of the material before me, I am not convinced that there has been a serious breach of law that would warrant the recording being excluded from my determination of this application. Furthermore, it seems to me that the recording is highly relevant to a matter to be decided in this application, that being, whether or not voters for the extraordinary general meeting requested access to documents pursuant to section 53 of the Accommodation Module. In summary, I would not exclude the recording simply on the basis of the Secretary’s statement that it was improperly or unlawfully obtained.

The Secretary also argues that the recording is new material and as such, was inappropriately provided by the Applicant as part of a reply to submissions. Further, the Secretary considers that if the Applicant intended to rely on the recording, it should have been submitted with the original application. The Secretary considers that acceptance of the recording in these circumstances constitutes a denial of natural justice.

I do not agree with the Secretary’s views on this issue for two reasons. Briefly, it seems obvious to me that the Applicant has presented the recording as evidence in rebuttal of very clear statements made by the Secretary as to whether or not people at the meeting asked for access to the roll. Therefore, I do not consider that the recording raises any new issues. Secondly, the Commissioner provided the Secretary with a copy of the recording, and I have been presented with, and will carefully consider the Secretary’s objections to the recording.

The Secretary’s final key objection to the recording is that it is unreliable. In summary, while the Secretary acknowledges that there are voices on the recording making reference to the Body Corporate roll, he argues that the recording is deceptive in that either the references to the roll have been inserted onto the recording after the meeting, or that the references were made at the meeting but deliberately designed not to be heard by the person chairing the meeting.

The Secretary also describes the "physical context of the meeting". Specifically, the Secretary states that the meeting was held in a large garage area, and at the time of the meeting, the noise of heavy rain made it difficult for people at the meeting to hear. The Secretary states that "(i)t is important to note that on several occasions the Chairman advised (clearly on tape) that people trying to speak from the body of the meeting could not be heard where he stood two metres in front of the top table^[3]. Far less could anyone at the top table hear what was said." The implication I have taken from this statement is that even if the references to the roll were made at the meeting, it was unlikely that the Chairperson and others assisting in the conduct of the meeting would have heard them.

It is clear that the Chairperson, Secretary and Mr Djurovitch each took on a significant role in the conduct of the extraordinary general meeting in question. As such, I must say that I find the Secretary’s description of the difficulties that he, the Chairperson, Mr Djurovitch and others had in hearing meeting participants most concerning, particular in light of Mr Djurovitch’s statement that "this was one of the most professionally conducted general meetings of the many I have seen in body corporate work. I could not fault one step of anything that was done." I find it difficult to reconcile Mr Djurovitch’s satisfaction with the conduct of this meeting with the Secretary’s statements that the Chairperson and others (including Mr Djurovitch) could not hear what the participants in the meeting were saying.

Notwithstanding the above, I do not consider that I am able to objectively and fairly test the veracity of the purported recording of the meeting, or the conflicting statements regarding whether or not participants in the meeting requested access to the body corporate roll at the meeting. It seems to me that an assessment of these issues requires the taking of evidence on oath from relevant parties and witnesses, including an opportunity for cross examination. The legislation does not provide me with authority to conduct this process.

Section 270(1)(b) of the Act allows an adjudicator to dismiss an application if the adjudicator is satisfied that the dispute should be dealt with in a court or tribunal of competent jurisdiction. In this instance, I do not consider that the Act provides me with the necessary powers to effectively test key issues raised concerning the extraordinary general meeting of 2 February 2003, and as a result, I intend to dismiss the application for orders about the meeting on this basis. I would add however, that this should not be taken as an indication of my views of the merits of the application. However, if the Applicant wishes to pursue the matter, she will need to do so in a court of competent jurisdiction where the conflicting versions of events at the meeting may be tested.

In the supporting grounds to the application, the Applicant describes three instances in which she considers voters for the extraordinary general meeting were improperly excluded from voting at the meeting. It seems to me that even if the Applicant could show that these votes should have been included for the meeting, there would be minimal impact on the results of voting. As a result, I would not disrupt the entire meeting, or decisions of the Body Corporate on this basis. However, I will make some brief comments about the matters raised by the Applicant.

In the supporting grounds to the application, the Applicant claims that Mr Primrose (who I understand is a co-owner of Lot 14) was denied the right to vote at the meeting on the basis that he was "unfinancial". The Applicant claims that Mr Primrose has a cheque butt to prove that he was up to date with his body corporate contributions.

I have been provided with very little to assist me determine whether Mr Primrose was financial at the time of the meeting. In addition, I note that Mr Primrose has not made a submission about the application. In the circumstances, I do not intend to consider or comment on this issue further.

In the supporting grounds to the application, the Applicant states that Mrs Schmidt endeavoured to submit a number of proxies prior to the commencement of the meeting. The Applicant goes on to state that Mrs Schmidt was told that the proxies "could not be accepted because they had not been posted to the Secretary". From the Secretary’s submission, I understand that the forms appointing Mrs Schmidt to act as proxy for particular owners were rejected because the forms were delivered by Mrs Schmidt, rather than the owners themselves.

I agree with the Secretary’s reasoning for the rejection of these proxies. Section 70(4) of the Accommodation Module provides that:

In Body Corporate for Surfers Waters CTS 20377 v Angland (District Court, Southport 10 March 2000), His Honour PD Robin QC.,DCJ considered section 51(2) of the Body Corporate and Community Management Standard Module Regulation 1997 which deals with exercising a written vote for a general meeting and provides that "(a) written vote is cast by completing the voting papers as required by the accompanying instructions and giving them to the secretary (personally, by post or by facsimile) before the start of the meeting." (my emphasis)

The Court decided that section 51(2) required that voting papers (unless delivered by post or facsimile), must be delivered personally by the voter to the secretary, and not by an intermediary. The rationale for this position appears to be one of consumer protection "designed to protect all owners by creating an assurance that every written vote cast is a sincere and honest expression of voter’s views, as authenticated by the voter’s task of taking the trouble personally to give a voting paper to the secretary if the alternate modes of transmission are not resorted to. That state of assurance, the argument runs, cannot be reached where some intermediary is interposed, who is the one who in the event gives a voting paper to the secretary."

It seems to me that a similar interpretation is properly applied to the use of the word "personally" in the context of the similarly worded section 70(4) of the Accommodation Module. For this reason, I agree that if a proxy form is not submitted by post or facsimile, the form should be given directly to the secretary by the owner appointing the proxy, and not via any other intermediary (including the person being appointed as proxy). In this instance, I agree that the proxies were properly rejected.

In the supporting grounds to the application, the Applicant states that Mrs Elaine Rose was not permitted to vote on behalf of a family company named Adeney Holdings. According to the Applicant, the Secretary disallowed the votes on the basis that there was a purported disagreement between the directors of the company regarding voting at the meeting. If I understand his submission correctly, the Secretary claims that the votes were disallowed on the basis that the company had not notified the body corporate of the details of its nominee.

A statutory declaration from Mrs Rose accompanies the Applicant’s reply to submissions. Mrs Rose states that Adeney Holdings "is not a company-it is just a business named used by family members". Mrs Rose also goes on to state that her votes were rejected on the basis of an alleged disagreement between directors of the company.

I do not consider that the parties have presented sufficient information for me to resolve this issue at this time. Firstly, I have not been presented with details of the lots that Adeney Holding is a co-owner of, and I have been unable to verify the registered ownership details. Secondly, if Adeney Holdings is a corporate co-owner of lots included in the scheme, neither the Applicant or Mrs Rose have presented information or details to show that the company has properly notified that body corporate of its nominee, who would be entitled to vote on behalf of Adeney Holdings, regardless of the alleged disagreement between directors. For these reasons, I do not intend to consider or comment on this matter further.

Finally the Applicant has sought a recommendation that all future general meetings of the "Jadon Place" Body Corporate be supervised by an independent returning officer.

The appointment of returning officers for general meetings is a matter that is covered by the legislation. Specifically, section 52 of the Accommodation Module provides that bodies corporate "may appoint a returning officer to decide questions about eligibility to vote and voting entitlements, and to count the votes".

I have decided to dismiss this part of the application for two main reasons. My first reason is a somewhat minor one and focuses on the actual terms of the order sought by the Applicant. Specifically, while I do not see a particular problem in an adjudicator making suggestions he or she considers appropriate in a statement of reasons for a decision, in my view, it would be problematic for an adjudicator to issue an order that simply made a recommendation that a person or body corporate act in a particular way. It seems to me that orders should be in definite terms clearly spelling out any requirements for parties to act, or desist from acting, in a specified manner. In my view, to issue an order making a recommendation about how a party should act could create significant uncertainty as to the positive actions that are necessary to satisfy the terms of the order.

Secondly, and more importantly, while I can foresee circumstances where an adjudicator may require a body corporate to engage a returning officer for a particular meeting (for example, in circumstances where the agenda includes particularly contentious matters, or where questions about voting entitlements are likely to be controversial), I am doubtful that an order compelling a body corporate to engage a returning officer for all of its future meetings is consistent with the objectives of the legislation.

One of the secondary objectives of the Act is "to balance the rights of individuals with the responsibility for self-management as an inherent aspect of community titles schemes" (see section 4(a) of the Act). It seems to me that an order imposing a continuing obligation on a body corporate to engage returning officers for future general meetings would detract from the concept of "self-management".

In my view, bodies corporate should be able to decide on a meeting by meeting basis whether or not to appoint a returning officer. I consider that owners will be in the best position to make a timely assessment of whether a returning officer will assist in, and add value to, the conduct of a particular meeting. I am very reluctant to issue orders that detract from the ability of owners to make decisions about the appointment of returning officers in the future, and which could have the result of compelling a body corporate to appoint a returning officer in circumstances were owners considered that the appointment was unnecessary.

I do wish to emphasise that my dismissal of the request for an order concerning a returning officer is solely for the reasons outlined above. My dismissal of this part of the application should not be taken as an indication that the appointment of a returning officer is undesirable. To the contrary, it seems to me that the appointment of an independent and competent returning officer can offer substantial benefits for bodies corporate, particularly where the matters to be decided by the returning officer are likely to be contentious.

^[1] Section 196 has recently been renumbered as section 246.
^[2] Heydon JD, "Cross on Evidence", Butterworths 2000 at 27230-27315; and Waye V, "A Guide to Arbitration Practice in Australia", Adelaide University Law School at 671.
^[3] I understand the Secretary and Mr Djurovitch sat at the "top table", adjacent to two other committee members.

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

(a)	contraventions of the Act, or the community management statement for the scheme; or
(b)	the exercise of rights or powers, or the performance of duties, under the Act or the community management statement for the scheme; or
(c)	contractual matters about the engagement of a person as a body corporate manager or service contractor, or the authorisation of a person as a letting agent, for the scheme.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Jadon Place [2003] QBCCMCmr 137 (25 September 2003)