Bower Lodge [2004] QBCCMCmr 47 (23 January 2004)

Number of Scheme:	17921
Name of Scheme:	Bower Lodge
Address of Scheme:	53 - 55 Bauer Street, SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Donna Joan Mroz TURCIC, as a co-owner of Lot 22,

I hereby order that the application for the following order –

"Before AGM voting (Feb 2004) goes ahead:
Either, all nominees for committee positions be asked to re-nominate, or "Second" chairperson nominee and Body Corporate Manager be asked to sign statutory declarations saying that "second" chairperson nomination was received by Body Corporate Manager/secretary by 01 Dec 2003 at latest",

is dismissed upon the applicant’s satisfaction as to the validity of the second nomination for chairperson.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0022-2004

"Bower Lodge" CTS 17921

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

I request an interim order because our AGM is coming up in Feb and it would be good to get this matter cleared up as soon as possible, no matter which way it goes.

JURISDICTION:
This is a dispute between an owner (the applicant Turcic) and the body corporate (the respondent), as to whether the Body Corporate Manager had received a nomination for chairperson from a second person to the applicant’s nomination, within the statutory time limit (by financial year-end) and therefore that the nomination was properly accepted by the body corporate. This is a matter falling within the disputes resolution provisions of the legislation (see sections 227(1)(b), 228(1) and 276 of the Act).

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 of the matter are relatively simple and clear; the relevant parties (see later under heading "Application and Submissions" following) have been given the opportunity to speak to the disputed matter; sufficient information is available to determine the matter; and, in particular, a prompt resolution of the dispute is in the interests of all parties as the annual general meeting is to be held shortly.

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.

General powers of an Adjudicator in making an order:
Section 276(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 –

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

APPLICATION AND SUBMISSIONS:
In consideration that the annual general meeting which the nomination relates to is to be held shortly, I determined that it was in the best interests of the parties and owners generally for the matter be resolved promptly to allow the ballot for chairperson to proceed without being in question.

Accordingly, I have dispensed with formal notification of the respondent and affected parties and inviting written submissions to the disputed matter, in favour of a teleconference with the appropriate parties to achieve a prompt outcome to the dispute. However, a copy of the application was provided to the representative participant for the body corporate (Ian Bloomfield of Advanced Body Corporate Administration, the Body Corporate Manager) before the teleconference. Bloomfield responded with a facsimile copy of a nomination by Kevin Slender, the second candidate for chairperson.

The brief facts of the matter, from the application, response and the teleconference, are as follows.

The applicant Turcic was under the impression that she was the only candidate for chairperson until 23 December when Bloomfield responded to her request to fax details of the candidates for the various committee positions. She said that previously at a committee meeting on 15 December 2003 she believed she had asked Bloomfield for similar information but he had not revealed Slender’s nomination, nor had Slender’s wife, Margie Slender, who was also present at the meeting as treasurer.

Turcic had faxed Bloomfield on 17 December for a list of candidates for the various positions and in response he faxed a list of the candidates only. On 18 December she asked for a matching of the candidates and the positions nominated for and these were supplied on 23 December as previously stated.

She states that Bloomfield was aware of the factions that had formed within the body corporate and should have acted more openly.

Bloomfield states that his recollection of 15 December is that Turcic only asked for general information on committee nominations, which did not include whether there was another nomination for chairperson. He believes he said that all positions would require a ballot. He said that he had received Slender’s nomination by fax on 17 November, well within time, and there was no skulduggery involved in his handling of the matter.

DETERMINATION:
"Bower Lodge" was registered as a building units plan (now termed a building format plan) on 27 October 1994 and comprises 27 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997.

On Tuesday 20 January 2004 I conducted a teleconference with the applicant (Turcic) and Bloomfield as representative for the respondent body corporate.

The central point of the dispute is whether Slender’s nomination was received by the financial year-end, 30 November 2003. I informed Turcic of the copy of Slender’s fax which shows Bloomfield’s office fax imprint as "17 Nov 03 12:53p". She said that she was unaware of this document and that "If Mr Bloomfield had offered this document to me on 24 Dec 2003, or even on 26 Dec (as he and I were even corresponding on that Boxing Day holiday), this whole matter could have ended then and there."

Rather than pursue the orders sought for statutory declarations, Turcic agreed that her sighting of the fax nomination by Slender would sufficiently satisfy her to the genuineness of it being received within time. It was arranged that she would visit Bloomfield’s office at 10am the next day for this purpose following which she would report her findings to this office.

On 23 January Turcic faxed this office stating "I would like it put on record that I accept Kevin Slender’s nomination fax." She continued her criticism of Bloomfield’s handling of the matter however that is not a matter that needs to be considered in determining this application.

As the matter in dispute has been resolved, my order is to dismiss the application.

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 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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Bower Lodge [2004] QBCCMCmr 47 (23 January 2004)