Meadow Peak [2003] QBCCMCmr 335 (20 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0741-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27360
Name of Scheme:	Meadow Peak
Address of Scheme:	Palm Meadows Drive, CARRARA QLD 4211

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

Brian John Densley, the co-owner of lot 50


RA MeekI hereby order that the application by Brian John Densley, the co-owner of lot 50, for an order that the validity of his nomination for election to the committee of the body corporate at the AGM to be held on 12 December 2002, be clarified, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0741-2002

"Meadow Peak" CTS 27360

The applicant Brian John Densley, the co-owner of lot 50, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the validity of his nomination for election to the committee of the body corporate at the AGM to be held on 12 December 2002, be clarified.

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 stated that –

On the 16-9-02 I was nominated for the committee by Mike and Maureen Armstrong. The nomination was received by SSK&B before the cut off date of 30-9-02. Mike and Maureen Armstrong were the owners of unit 51 at Meadow Peak.

I have just received a letter from SSK&B ... informing me I am now (no) longer eligible for the committee. I wish to have this clarified by your office as the AGM is to be held on the 12-12-02 at 9.00 am. ...

In the reasons for my decision for the interim order, I noted -

Prior to the making of this interim order, this office sought a submission from the body corporate committee. The committee submission opposes the interim order being sought. The submission states –

We submit that for the convenience of all parties, there is no need to put off the election, even if the application is not determined by the time of the meeting.

The election should proceed, taking into account the votes received for Mr Densley. It may well be that he is not elected, at which time to "put off" the election until a later time would be detrimental to the body corporate given that there are 124 lots in the scheme. The cost to proceed to another election would be quite expensive, when it is not necessary.

We believe that Mr Densley is not eligible to be considered for election of the committee, however even if we are wrong in this view, then there is no need to "put off" the election as the order can be suitably framed so that (if he) is eligible then he can be declared elected.

I agree with the statements expressed in the submission of the body corporate committee regarding the making of the proposed interim order. To prevent the election proceeding and requiring it to be held subsequently, given that there are 124 lots in the scheme, would be prohibitive in terms of cost. It might also be disruptive to the body corporate generally not to allow committee elections to proceed.

I propose to allow the election to proceed on the basis that the applicant is included as a candidate for election. If elected, then I intend to order that the applicant is entitled to take his place on the committee pending the making of a final order determining the validity of his nomination. I see no detriment in this to the body corporate generally. The applicant, as one of presumably 7 committee members, would have no ability to individually influence the committee. If the applicant is elected, but his nomination is subsequently declared invalid, then in consequence of that determination, I propose to order that he cease to be a committee member. The person with the next highest number of votes will then become a member of the committee. If, in any event, the applicant is not elected, then there will be no need for a final determination to be made, except perhaps to dismiss the application. The parties should advise this office of the outcome of the election immediately it is known.

My only concern with this proposed course of action is to ensure that the outcome of the vote for the election is fair. My particular concern is that if owners are somehow aware that the validity of the applicant’s nomination has been challenged, might this effect their voting for the committee, and for the applicant in particular. I note that the applicant’s name has been included on the list of nominations received. Presumably therefore any owner voting by voting paper might still vote for the applicant. As for those present at the meeting, either personally or by proxy, these owners can be informed that the committee election is proceeding on the above basis. Prima facie, I would consider the election being held on this basis as fair to the applicant.

However, if the applicant believes that the circumstances surrounding the purported invalidation of his nomination are such that he has been disadvantaged, then he should outline to me the basis on which he believes this to be so. He should do this within seven (7) days of the AGM being held. I suggest that any allegations to this effect should be specific, and not for example, a general feeling that some owners might have heard, and might have not voted on the belief that the nomination was invalid. Moreover, on the question of whether the applicant was so disadvantaged, I do not propose to seek submissions from all 124 owners prior to the making of any final order. I will make this determination on the basis of evidence (if any) supplied by the applicant, in respect of which the body corporate will be given the opportunity to make a further submission. Given the cost of obtaining submissions from 124 owners, I do not consider it warranted to seek submissions from all owners when the question to be determined by this application is essentially a technical one, requiring an interpretation of the legislation.

I have now been provided with a copy of the minutes of the "reconvened AGM" held on 19 December 2002. The last item of business at that meeting included the committee election. I note that there were 7 nominees, including the applicant, for the five ordinary committee positions available. After a secret ballot was held, three persons were clearly elected on numbers, with one person being clearly not elected. The remaining three nominees, which included the applicant, were tied on 14 votes each. The minutes state –

A further ballot was held to appoint 2 of the 3 tied votes at 14 with the result that Armstrong and Kirwan were appointed to the Committee.

On the basis of the election, the applicant was not elected to the committee.

I have not received any further correspondence from the applicant, in particular alleging that the circumstances surrounding the purported invalidation of his nomination were such that he had been disadvantaged.

I now consider that this matter is at an end, and that it is not necessary to determine the validity of the applicant’s nomination to the committee since the applicant was not elected in any event. Accordingly, this application is dismissed.