St. Tropez [2004] QBCCMCmr 619 (6 December 2004)

Last Updated: 30 September 2005

REFERENCE: 0771-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11844
Name of Scheme:	St. Tropez
Address of Scheme:	27 - 35 Orchid Avenue Surfers Paradise, Queensland

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
Carla Zampatti Pty Ltd ACN 001 336 036, the Owner of Lots 1, 2, 3, 4, 5, 6, 7, and 8:

I hereby order that the application for an interim order requiring the Body Corporate Committee to refrain from calling an annual general meeting of the Body Corporate is dismissed. I further order that the application for final orders concerning the validity of a corporate nominee form and a committee nomination form is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0771-2004

"St. Tropez" CTS 11844

1.	The Applicant

Carla Zampatti Pty Ltd ACN 001 336 036 (the Applicant) has made a dispute resolution application to the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act). I note that Mr Peter Beattie has signed the application on behalf of the Applicant in his capacity as company nominee.

The Applicant claims to be the registered owner of Lots 1, 2, 3, 4, 5, 6, 7 and 8 included in the "St. Tropez" community titles scheme. Department of Natural Resources, Mines and Energy (NRME) records confirm that Carla Zampatti Pty Ltd ACN 001 336 036 is indeed the registered owner of Lots 1, 2, 3, 6, 7 and 8. However, NRME records show that Lots 4 and 5 are owned by Carla Zampatti (NSW) Pty Ltd. No ACN number is recorded for this company on the relevant title searches.

The ownership of Lots 1 to 8 is an important aspect of this application (as will become evident later). As a result, I have undertaken enquires to determine whether or not Carla Zampatti Pty Ltd and Carla Zampatti (NSW) Pty Ltd are different companies. Specifically, I have conducted a search of the National Names Index administered by the Australian Securities & Investments Commission. This search has revealed that Carla Zampatti (NSW) Pty Ltd is the former name of Carla Zampatti Pty Ltd. The search also showed that the same ACN number (001 336 036) is applicable for both Carla Zampatti Pty Ltd and Carla Zampatti (NSW) Pty Ltd.

Further, I note that the lease of Lots 4 and 5 (registered on 26 June 2001) records the lessor as "Carla Zampatti (NSW) Pty Limited ACN 001 336 036", that is, the same ACN number as Carla Zampatti Pty Ltd.

For all of these reasons, it seems clear to me that Carla Zampatti Pty Ltd and Carla Zampatti (NSW) Pty Ltd are indeed the same company and that this company is the owner of Lots 1, 2, 3, 4, 5, 6, 7 and 8 as claimed by Mr Beattie in the application and supporting material. As a result, I have treated the Applicant as the owner of Lots 1 to 8 for the purposes of determining this application.

2.	The outcomes sought

The Applicant states that it is seeking the following final orders:

(i)

That the ruling of the Chairperson and/or the Committee at the Committee meeting of the Body Corporate held on 18 November 2004 that the Corporate Owner nomination form received for Peter Beattie on behalf of Carla Zampatti Pty Ltd ("the Owner") in respect of lots 1 to 8 was not able to be accepted in that the Owner was not financial on more than one of those lots when the time limit for submission of nominations was closed, is incorrect and of no effect.

(ii)	That the Corporate Owner Nomination Form received for Peter Beattie on behalf of Carla Zampatti Pty Ltd ("the Owner") is valid in respect of those lots for which the Owner was financial when the time limit for submission of nominations was closed.

The Applicant is also seeking an interim order restraining the committee for the Body Corporate from calling the annual general meeting of the Body Corporate pending the final determination of this application.

3.	The "St. Tropez" community titles scheme

NRME records show that the "St. Tropez" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 11 July 1979. The scheme land consists of 53 lots and common property.

A new community management statement was recorded for "St. Tropez" on 18 March 1998. The community management statement shows that the Act’s Body Corporate and Community Management (Accommodation Module) 1997 (the Accommodation Module) applies to the scheme.

4.	Administration of the application

The Commissioner received this application on 1 December 2004. The Commissioner subsequently referred the application to me under section 247(2) of the Act to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. This referral was made even though affected parties (including the Body Corporate) had not been issued with formal notice of the application, or afforded an opportunity to make submissions about the application (section 247(3)).

5.	Jurisdiction

Section 227 of the Act limits the disputes that may be resolved under the Act’s dispute resolution provisions to those between particular combinations of parties involved in community titles schemes. This application, which describes a dispute between the owner of a lot included in a community titles scheme and the body corporate for the scheme (albeit acting through its committee), falls into the category of dispute contemplated by section 227(1)(b).

Section 276(1) of the Act allows adjudicators to make just and equitable orders to resolve disputes in community titles schemes about a range of matters including claimed or anticipated contraventions of the Act or a scheme’s community management statement. In this case, the Applicant argues that the Body Corporate (through its Committee) has misapplied provisions of the legislation relating to the ability of lot owners to nominate people for committee membership. As a result, the matter is one that may be considered by an adjudicator.

6.	Matters in dispute

Body corporate committees play an important role in the ongoing administration and operation of community titles schemes. The Accommodation Module includes provisions for the composition of body corporate committees, eligibility for membership of body corporate committees, the choosing of body corporate committees and powers of body corporate committees.

Generally, bodies corporate choose a committee at each annual general meeting (section 12 of the Accommodation Module). Usually, committees are chosen by election. Prior to the annual general meeting, lot owners have an opportunity to nominate themselves or certain other related persons for membership of the committee (sections 14 and 11 of the Accommodation Module).

From the material, I understand that in this case, the Applicant submitted a nomination to the Body Corporate Manager for the scheme prior to the end of the scheme’s financial year. The Applicant submitted the nomination as the owner of lots 1-8 (specified by the Applicant on the nomination form) and nominated Mr Beattie for an ordinary committee position.

It appears that the nomination has been rejected by the current committee. The Applicant has provided a copy of an email issued by the current Chairperson. The email seems to indicate that the nomination was rejected because the Applicant owed the Body Corporate money in respect of a number of its lots. The email seems to indicate that the fact that the Applicant referred to all of its lots on the nomination form was fatal to the validity of the nomination, given that the Applicant was un-financial in respect of a number of those lots. The email suggests that if the nomination has been submitted simply in respect of a single lot (in respect of which the Applicant did not owe any money), the nomination could have been accepted.

If I understand it correctly, the Applicant considers that this reasoning is incorrect and that the nomination should be accepted. The Applicant does not appear to dispute that monies are owed to the Body Corporate in respect of a number of its lots. However, the Applicant appears to consider that as long as it is financial in respect to at least one of its lots, then it is entitled to submit a nomination for committee membership, and that it is irrelevant which lots are referred to on its nomination forms.

7.	Determination

Section 279(1) of the Act allows an adjudicator to issue an interim order "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates".

Two examples of possible interim orders accompany section 279(1) and are suggestive of the usual circumstances where an interim order might be made. While the range of matters that may be the subject of an interim order is not capable of definition, it is worth noting that both examples of interim orders included in the Act are in the nature of injunctive relief.

The nature of the examples of interim orders mentioned in the Act, and the fact that the operation of interim orders is generally limited to one year (section 279(2)(a)), suggests that the purpose of interim orders is not to simply expedite a final outcome of a dispute. Rather, it seems to me that generally speaking, interim orders are to be used to preserve a situation, in other words to maintain the "status quo", pending a final determination of the issues in dispute.

Notwithstanding these general principles about interim orders, after reviewing the application I have come to the view that the basis and reasoning of this application is flawed and that the application for both interim and final orders should be dismissed without further reference to the parties. My reasons for this decision follow.

A number of requirements concerning eligibility for membership of a body corporate committee are set out in section 11 of the Accommodation Module. In addition, the section includes restrictions on the ability of owners to nominate either themselves or another person for committee membership if the owner owes a body corporate debt^[1] at the time when the nomination is received by the body corporate secretary. Specifically, section 11(3) provides that:

(3) Also, a member of the body corporate--

(a) is not eligible to be a voting member of the committee if the

member owes a body corporate debt when the members of the

committee are chosen; and

(b) may not nominate a person for membership of the committee if

the member owes a body corporate debt when the nomination is

received by the secretary.

(my emphasis)

Therefore, section 11(3)(b) of the Accommodation Module restricts a member of a body corporate from making nominations for the committee if the body corporate member owes a body corporate debt when the nomination is received by the secretary.

In this case, it appears to be undisputed that the Applicant owed a body corporate debt at the time the nomination in question was made, albeit not in respect of all of its lots. Therefore the question to be decided is whether the Applicant can make nominations for the committee on the basis of ownership of particular lots, in respect of which it does not owe a body corporate debt.

As the owner of lots included in the scheme, the Applicant is a member of the Body Corporate (section 31 of the Act). While the Applicant has the right to vote on behalf of each of its eight lots at a general meeting, I do not consider that it can be sensibly suggested that the Applicant is eight separate members of the Body Corporate.

The application of a plain reading of the terms of section 11(3) is that at the relevant time, the Applicant was a member of the Body Corporate and that the Applicant owed a body corporate debt. As a result, I do not consider that the Applicant was entitled to nominate persons for membership of the Committee. The terms of section 11(3) do not suggest that it is relevant whether that debt was owed in respect of one or more of the Applicant’s lots. Similarly, I do not consider it is relevant whether the Applicant submitted a nomination form identifying one or all of its lots. The important issue is whether or not the Applicant owed a body corporate debt when the nomination was received by the secretary. In this case, it appears that a debt was owed by the Applicant.

For these reasons, I disagree with the Applicant’s basis for this application and I do not consider that the Applicant was entitled to make a nomination for committee membership. As a result, I have dismissed the application for interim and final orders.

^[1] "Body corporate debt" is defined in the Schedule of the Accommodation Module to mean the following amounts owed by a lot owner to a body corporate: contributions or instalments of a contribution; penalties for not paying a contribution or an instalment; or another amount associated with ownership of the lot.