Westlake Villas [2004] QBCCMCmr 266 (21 May 2004)

Last Updated: 30 September 2005

REFERENCE: 0004-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23115
Name of Scheme:	Westlake Villas
Address of Scheme:	241 Horizon Drive WESTLAKE QLD 4074

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Cristina Ghiculescu, the owner of lot 50 and Razvan-Anton Ghiculescu, the occupier of lot 50

I hereby order that the application by Cristina Ghiculescu, the owner of lot 50 and Razvan-Anton Ghiculescu, the occupier of lot 50, for orders that - 1. Void the vote on all motions including election of committee members at the AGM held on 1 December 2003; 2. Request to SSKB Strata Management secretary to outline his duties in writing, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0004-2004

"Westlake Villas" CTS 23115

The applicants, Cristina Ghiculescu, the owner of lot 50 and Razvan-Anton Ghiculescu, the occupier of lot 50, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

1. Void the vote on all motions including election of committee members at the AGM held on 1 December 2003.
2. Request to SSKB Strata Management secretary to outline his duties in writing.

Section 276(1) of the Act 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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

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

The scheme

The scheme is a subdivision of 50 lots registered under a group title plan (now a standard format plan). The regulation module applying to the scheme is the standard module.

The application and submissions

This office sought submissions in respect of the application from the body corporate committee and all owners. Submissions were received from three individual owners and the body corporate. I do not intend to set out in any detail the applicant’s grounds, nor the contents of submissions in response. I am satisfied that all parties are aware of the position of the other from the application, submissions and the right of reply processes. I therefore intend only to refer to those materials necessary for a determination of the issues raised.

I intend to dismiss this application. The application seeks the invalidation of the entire AGM, and for what reason; namely that they misunderstood their entitlement to vote. The applicants further seek to make the secretary responsible for informing them of their rights and responsibilities, particularly in respect of such voting. I consider it is an individual owner’s responsibility to know their rights regarding voting. In any event, the notice of AGM did include a section headed "Voting instructions". I consider that had the applicants read this material supplied with the notice of meeting, then they could have avoided the situation of which they now complain.

The acceptance or otherwise of the vote for the applicant’s lot would not have changed the outcome of any motion. Given this, and my comments above regarding it being the owner’s responsibility to inform themselves of their rights and responsibilities in relation to voting, where is the justification for the order which is sought. Why should I inconvenience and incur cost to 49 other owners in the necessity to convene a further AGM simply because the applicants were not aware of their voting entitlements. I further consider the applicant’s have failed to show any nexus or proportionality between the wrong which they allege and the relief which they seek.