Daniells Terraces [2003] QBCCMCmr 442 (27 March 2003)

Last Updated: 10 September 2007

C G YOUNGREFERENCE: 0674-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4489
Name of Scheme:	Daniells Terraces
Address of Scheme:	47 Daniells Street CARINA QLD 4152

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

Mark John WANKIEWICZ, as the owner of Lot 2,



C G YOUNGI hereby order that within two (2) weeks of the date of this order, Peter Blondell as body corporate secretary, must provide to owners a ballot paper for the position of treasurer showing Peter Blondell and Mark Wankiewicz as the only candidates, including a notification that completed ballots must be received by him within two (2) weeks of owners having received them.

I further order that until the ballot vote determines the position of treasurer, Peter Blondell shall continue to hold that position.

I further order that a copy of this order and the accompanying reasons must be sent to owners with the ballot paper. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0674-2002

"Daniells Terraces" CTS 4489

The applicant, Mark Wankiewicz of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That my nomination for the position of treasurer is accepted, and the ballot for treasurer is conducted again as soon as practicable."

JURISDICTION:
This is a dispute between an owner (the applicant Mark Wankiewicz) and the body corporate (the respondent), concerning the validity of the applicant’s nomination for the position of Treasurer and the subsequent filling of that position at the annual general meeting held on 30 October 2002. These are matters falling within the disputes resolution provisions of the legislation (see sections 182A, 183 and 223 of the act).

General powers of an Adjudicator in making an order:
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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

APPLICATION AND SUBMISSIONS:

Under section 194 of the Act, a copy of the application was provided to the respondent body corporate (committee) and to all other owners, with an invitation to respond to the dispute matter raised in the application. A person likely to be affected by the order, Peter Blondell of Lot 3 who was declared to be the treasurer at the annual general meeting, make a submission, as did the owner of Lot 4. The applicant Wankiewicz made a reply to those submissions after inspecting them under the authority of section 196 of the Act.

The brief facts of the matter are as follows. The applicant nominated for the committee positions of chairperson, treasurer and ordinary member, to be decided at the annual general meeting held on 30 October 2002 ("the meeting"). By letter dated 8 October, Blondell, acting as secretary, notified Wankiewicz that he had rejected his nomination for treasurer on the ground that he had failed to complete the "status" box on the nomination form indicating he was an "owner". Subsequently at the meeting, Blondell was elected unopposed to the position of treasurer.

Wankiewicz believes that his nomination should not have been rejected as: he was known to all owners and the declaration he was an owner was unnecessary; in any case, he had signed the bottom of the nomination form as "owner" thereby declaring his status; and Blondell should have notified him of the omission in the weeks he had it in his possession before compiling the ballot and notice of meeting. Blondell says: he acted within the law and was obliged to reject the nomination; there was a new owner in Lot 4 who may not have known Wankiewicz; and he did not notice the omission until after the time for nominations had closed and it could not be rectified.

DETERMINATION:

A number of applications to this office show that despite being only a 4-lot scheme, there is continuing ill feeling between two owners, Wankiewicz and Blondell. While the new owner to Lot 4 has made a submission, essentially following what she believes to be the law that the omission was fatal to the nomination, the remaining co-owners of Lot 1 made no response.

My determination in regard to the nomination by Wankiewicz for treasurer is that it was valid for the following reason.

The "Nomination of Candidate(s)" form used by the body corporate is not a prescribed form under the legislation. The form has either been compiled by the body corporate or acquired from another source. However, it contains all of the necessary requirements for nomination as set out in section 13 of the Standard Module regulations. As Blondell has pointed out, section 13(6)(c) requires that for a nomination for treasurer, the candidate must show whether they are the owner of a lot. The purpose of this requirement is essentially for non-owner candidates to disclose their connection to a Body Corporate Manager, or any other company with an interest in the scheme.

While the "status" box on the form is a proper means of seeking the required information of the candidate, the circumstances here are that Wankiewicz clearly signed the form three times as the candidate, and again above "Signature of Owner(s)". It is clear on the face of the form that he is an owner. In these circumstances, the nomination should have been accepted. I realise this means that the relevant box on the form was not completed, but the information was clear elsewhere on the form. I believe I am supported in making this determination by Judge Boulton in Wei-Xin Chen v. Body Corporate for Wishart Village CTS 19482 District Court 4080/2000, who stated at page 7 –

The very detailed provisions of the standard module regulation to which I have referred above make it almost inevitable that from time to time there will be non-compliance. Equally though, the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.

Omissions and errors in form and procedure often occur, and each instance must be evaluated to determine whether they are matters of substance or of no consequence. This omission falls into the latter category. Wankiewicz’s nomination should have been accepted.

The filling of the position by Blondell was therefore invalid and my order is therefore that the position is to be put to a "flying minute" vote, with Blondell and Wankiewicz the sole candidates as would have otherwise been the case at the meeting. For administrative purposes, Blondell will retain the position of treasurer until the outcome of the vote is known.

Having determined the matter on the first ground, I do not need to consider the other grounds of the applicant, though I would say that they have substance, but of lesser merit than the ground this application has been decided upon.