Bayview Shores [2004] QBCCMCmr 209 (21 April 2004)

Last Updated: 30 September 2005

REFERENCE: 0239-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4078
Name of Scheme:	Bayview Shores
Address of Scheme:	5 Bayview Street RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ronald HANFORD, as a co-owner of Lot 6,

I hereby order that the application for the following order – "For the 2004 Annual General Meeting to be declared null and void", is dismissed on the grounds that the application appears to be without substance within the meaning of section 270(1)(c) of the Body Corporate and Community Management Act 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0239-2004

"Bayview Shores" CTS 4078

The applicant, Ronald Hanford of Lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"For the 2004 Annual General Meeting to be declared null and void."

The applicant has also made application for the following interim order –

"Interim Order prohibiting action on motions passed at A.G.M."

JURISDICTION:
The application asserts a dispute between an owner (the applicant Hanford) and the body corporate chairperson (the respondent), concerning the examination and referral of voting papers back to certain owners by the secretary, alleged by the applicant to be a "tampering" with those votes.

Section 227(1) of the Act sets out those persons who may be parties to a dispute; paragraphs (a) and (b) allow an owner to bring a dispute against another owner or occupier of another lot, or the body corporate, respectively. There is no provision for a dispute to be brought by an owner against a chairperson.

However, the applicant would have been allowed to change his application to show the body corporate as the respondent (the proper respondent when seeking to invalidate a meeting) in which case it would constitute a dispute under section 227(1)(b). For purposes of explanation of the more significant, and in my opinion fatal, error in this application, I shall assume jurisdiction exists and proceed in the matter.

While section 279(1) of the Act provides that an adjudicator may make an interim order if satisfied on reasonable grounds that an interim order is warranted because of the nature or urgency of the circumstances, there is nothing in the legislation to prevent an adjudicator, in appropriate circumstances, from making a final determination of the dispute by proceeding directly to a final order.

I consider this course is appropriate in this instance because: the facts are simple and clear; the information provided is sufficient to determine the matter; and in my view the grounds submitted in support of the application attract the application of the dismissal grounds available to an adjudicator under section 270 of the Act (see later).

Accordingly, this order will be the only order made in respect of the application. The parties, of course, retain their appeal rights against the order made, and my having dispensed with the making of an interim order does not diminish those rights.


APPLICATION AND SUBMISSIONS:
For the reasons given under "Jurisdiction" I propose to determine this application without reference to the respondent, whether that be the chairperson or the body corporate, or the applicant.

It is a rare instance for me to determine an application in this manner, however the circumstances here persuade me to take this course with the benefit being that it will not only promptly resolve the matter but save both time and cost being unnecessarily incurred by both the body corporate and this office in pursuing what is plainly a dispute without substance.

The following constitutes the full grounds submitted by the applicant –

"The secretary prior to the AGM was one, Norman Harper, and he tampered with the voting papers prior to the meeting. By tampering with the voting papers, I mean that prior to the meeting he examined the voting papers (submitted by post or delivery to the Body Corporate letter box) to determine how people voted and contacted some of these people to have them alter their voting paper.

This matter was raised at the outset of the AGM and the chairman admitted that this was true and explained that some votes had been cast incorrectly and that the secretary had contacted the persons concerned and returned their voting papers for correction.

I attach copy of Minutes of AGM of 28/04/04. Page 2 of the minutes (after declaration of quorum) show that this matter was raised at the meeting and also gives the admission of the tampering and the reason for it."

DETERMINATION:
"Bayview Shores" was registered as a building unit plan (now termed a building format plan) in December 1991 and comprises 101 lots. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

The events relate to the annual general meeting recently held on 28 March 2004.

The legislation allows a body corporate (secretary) to open envelopes and enter details of voting papers onto a voting tally-sheet, provided they are not for a secret ballot. If this was not permissible, in the case of larger bodies corporate such as "Bayview Shores" with a meeting agenda comprising 20 or so motions, the examination, entering and counting of votes would take an unacceptable length of meeting time.

From the chairperson’s comments recorded in the minutes, it appears that when opening voting papers the secretary noticed 4 or 5 voting papers for alternative motions had been incorrectly made out (see section 42B of the Standard Module); he reportedly returned them to owners to enable them to amend their votes if they desired, and all were subsequently returned (presumably amended).

New procedures for dealing with proposals that have alternatives were introduced with other amendments on 1 December 2003. They fill a previous legislative vacuum which gave rise to the unethical practice of preferred suppliers or service providers given the advantage of being the first motion put to the vote with the alternative buried in the latter part of the agenda. The new requirements provide owners with an instantly recognisable choice amongst alternatives.

The applicant alleges tampering but provides no evidence of this. For instance, there is no disclosure of the names of those owners who had their voting papers returned by the secretary, or what may have been said to them concerning their vote. Use of the term "tampering" implies that the secretary altered the vote by suggesting to owners that they vote in a way different to what they did in their voting paper. If the applicant meant this in saying "contacted some of these people to have them alter their voting paper", then he has provided no proof of this.

He cannot merely make the assertion on the chance that it may be true and hope the evidence turns up in the course of the adjudication process. That practice is commonly referred to by the courts as a "fishing expedition" and it is not acceptable to either the courts or this jurisdiction that unsubstantiated allegations can be filed against another party.

If on the other hand the applicant is not alleging that the secretary attempted to have owners change their vote but had purely pointed out to them errors in the manner of their voting, then I do not consider that is a reason to invalidate the meeting. If this was the motive for the secretary’s actions, then in so doing he was entering into an area where great care would need to be exercised to avoid the charge of acting improperly – for instance, by only returning those incorrectly completed voting papers that favoured a certain alternative but not those favouring another. There is nothing in the applicant’s grounds that evidences or even suggests that this may have been done. It appears that, and this seems to be all that the applicant is relying on, Harper, with knowledge of the new legislation, was merely attempting to ensure owners did not waste their vote. I neither condemn nor approve such action; I think it is a practice where, if it is part of a matter before an adjudicator, must be considered as to its particular facts to determine whether it has tainted the vote or was purely an assistance to owners.

Section 270 of the Act makes special provision for an adjudicator to dismiss an application in special circumstances, including where it appears to the adjudicator that an application is without substance, and for compensation to be awarded the respondent for loss resulting from the application. The section states (my bold emphasis added)-

270 Dismissal of applications
(1) The adjudicator may make an order dismissing the application if--

(a) it appears to the adjudicator that the adjudicator does not have jurisdiction to deal with the application; or
(b) the adjudicator is satisfied the dispute should be dealt with in a court or tribunal of competent jurisdiction; or
(c) it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance; or
(d) the applicant fails, without reasonable excuse, to comply with a requirement of the adjudicator under section 271(1).

(2) The adjudicator’s power to make an order under this section may be
exercised--

(a) without investigating the detail of the application; or
(b) before an investigation has ended.

(3) If the adjudicator makes an order under subsection (1)(c), the
adjudicator--

(a) may order costs against the applicant to compensate the person against whom the application was made for loss resulting from the application; and

Example of loss for paragraph (a)--
Legal expenses reasonably incurred by the person in relation to the application.

(b) in ordering the costs, may have regard to previous applications made by the applicant.

(4) The amount of costs ordered under subsection (3) must not be more than $2 000.

For the above reasons it is my opinion that the application is without substance, or at least it appears to me that it is without substance, and I have dismissed it for this reason. As I have not sought any submission from the respondent, or involved the respondent in any teleconference, or caused the respondent otherwise to incur any loss, then the question of compensation does not arise.