Yuruga [2004] QBCCMCmr 460 (29 September 2004)

Number of Scheme:	11504
Name of Scheme:	Yuruga
Address of Scheme:	63 Moray Street NEW FARM QLD 4005

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

I hereby declare that Brett John Heath is not authorised by virtue of his appointment as Dragica Debert’s attorney under enduring Power of Attorney dated 2 March 2004 to attend and vote at body corporate committee meetings as the representative of elected committee member Dragica Debert.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0224-2004

"Yuruga" CTS 11504

ORDER SOUGHT

The applicant, the body corporate for Yuruga, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

A ruling is sought on whether a power of attorney enables Brett John Heath to attend committee meetings as a representative of a committee member Dragica Debert.

JURISDICTION

The applicant has sought a declaratory order (section 227(2) of the Act).

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

(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)).

BACKGROUND

The scheme comprises 12 lots registered in a building units plan (now defined as a building format plan) and is regulated by the Body Corporate and Community Management (Standard Module) Regulations 1997 (Standard Module).

The applicant stated that Dragica Debert is an owner of a lot included in the scheme and she is also a member of the body corporate committee. The applicant further stated that a disagreement has arisen between Ms Debert and the body corporate as to whether Ms Debert’s attorney (appointed under an Enduring Power of Attorney) would be authorised to attend and vote at committee meetings on Ms Debert’s behalf. The applicant provided a certified copy of the Power of Attorney.

Ms Debert and all owners were invited to respond to the application.

A submission was received from Ms Debert, but from no other owner. Ms Debert referred to section 67 of the Standard Module, and based her argument that her attorney should be allowed to attend and vote at committee meetings on her behalf on the provision that a person appointed as a proxy for a committee member must be another voting member of the committee or a person who is eligible to be an ordinary member of the committee. However, section 67 (amongst others) of the Standard Module was amended on 1 December 2003, and now provides only that a person appointed a proxy for a committee member must be another voting member of the committee.

Ms Debert also referred to certain of the provisions of the Anti Discrimination At 1991, claiming that any ruling which prohibited a committee member from vesting their voting powers in a duly authorised attorney would constitute unlawful discrimination against the committee member.

DETERMINATION

It is common ground that Ms Debert has been lawfully elected to the body corporate committee.

The committee is the administrative arm of the body corporate, and its members therefore represent the body corporate, which is comprised of the owners of lots included in the scheme. Accordingly a member of the committee does not represent his or her personal interests at committee meetings, but is rather required to represent the interests of owners as a whole. This principle is reinforced by the requirement that a committee member must disclose to a committee meeting that committee member’s direct or indirect interest in an issue being considered or about to be considered if the interest could conflict with the appropriate performance of the member’s duties about the consideration of the issue (section 34(1) of the Standard Module). Furthermore, if the committee member makes such a disclosure and is a voting member of the committee, the member is not entitled to vote on the issue (section 34(2) of the Standard Module).

Section 10(1)(b)(i)(B) of the Standard Module provides that a person is eligible to be a voting member of the committee if the person is an individual nominated for membership of the committee of the body corporate and is also a person acting under the authority of a power of attorney given by the individual. Accordingly, Ms Debert’s attorney would have been eligible to be a voting member of the committee had he been nominated for membership and had he then been chosen by owners in accordance with the usual processes. In contrast, he would not be eligible to be appointed Ms Debert’s proxy (after she had been chosen to be a member of the committee), under section 67 of the Standard Module.

The distinction to be drawn here is that owners would have had the opportunity of deciding whether they wished to have Ms Debert’s attorney as their representative on the committee had he been nominated under section 10(1)(b)(i)(B), whereas if he were permitted to attend and vote at committee meetings simply at Ms Debert’s behest as her attorney then owners would be deprived of that choice.

Ms Debert is the duly elected committee member, and in the event that she is unable to attend committee meetings she may appoint another voting member of the committee as her proxy. She can, therefore, still "maintain diligence in the discharge of her duties" (paragraph 5, page 2 of Ms Debert’s undated submission received on 15 June 2004).

I consider that the recent amendment to section 67 of the Standard Module supports this view, as it fortifies the principle that only voting members of the committee who have been chosen or appointed to this role, whether in their own right or as a proxy for another committee member, are eligible to vote on body corporate business. I am not persuaded that the limitation of proxies under section 67(1) is discriminatory. Ms Debert would not be disenfranchised by this process.

I also reject Ms Debert’s argument under the Anti-Discrimination Act 1991 (the ADA) on the basis that it has no relevance to this issue. The body corporate is not an organisation of people who carry on a business. The body corporate is in fact expressly prohibited from carrying on a business (section 96(1) of the Act). Ms Debert appears to have misapprehended the meaning of sections 20, 21 and 22 of the ADA in this regard.

The position would be different, however, in relation to Ms Debert as an owner, as opposed to her position as a committee member. There would be nothing to prevent Ms Debert’s attorney from attending and voting at general meetings on her behalf, because at such meetings Ms Debert’s presence would be as an owner. Her membership or otherwise of the committee would be immaterial (unless she had been elected chairperson, in which case it would be material only to the extent that she would chair the meeting and have certain powers under section 47 of the Standard Module). At a general meeting, therefore the attorney would appropriately be her personal representative. Similarly, her attorney would be authorised to complete a voting paper on her behalf.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Yuruga [2004] QBCCMCmr 460 (29 September 2004)