Vardon Point Apartments [2005] QBCCMCmr 223 (22 April 2005)

Last Updated: 5 July 2005

REFERENCE: 0048-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29516
Name of Scheme:	Vardon Point Apartments
Address of Scheme:	1 Millennium Circuit PELICAN WATERS QLD 4551

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

John Evered, the owner of lot 65

I hereby order that the application by John Evered, the owner of lot 65 for orders that: 1. An amended election result be issued in respect of the position of "Secretary" and John Evered be appointed secretary; 2. Failing 1 above the election be declared void, through not complying with various aspects of the Act, and be reheld, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0048-2005

"Vardon Point Apartments" CTS 29516

The applicant, John Evered, the owner of lot 65, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

1. An amended election result be issued in respect of the position of "Secretary" and John Evered be appointed secretary.
2. Failing 1 above the election be declared void, through not complying with various aspects of the Act, and be reheld.

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 is a subdivision of 70 lots. The regulation module applying to the scheme is the accommodation module.

This dispute concerns the election to the position of committee secretary at the AGM of the body corporate held on Friday 22 October 2004. The applicant was a candidate for the position of secretary, but at the meeting was not declared elected, obtaining 3 votes less than the successful candidate. The applicant is now contesting this election, and contents that on the basis of 4 incorrectly recorded votes, he should have been declared elected by a margin of 26 to 25 votes.

I consider several aspects of the way this entire dispute has been presented to me to be unsatisfactory. I shall shortly address certain points regarding the application, however, the submission of the body corporate in response is completely unsatisfactory. Firstly, it does not address in any way the specifics of the dispute. I consider the committee submission, rather than seek to imply certain matters in respect of the applicant, should rather have objectively addressed the disputed aspects of the ballot. The committee submission is a poor and lazy response to the application. Had such a response been provided in a court setting, it is likely in my view that the court would have found for the applicant on the basis that the respondent did not adequately or at all address the complaint. The committee however is saved in this instance by the fact that my jurisdiction is somewhat different, and includes a requirement to "investigate" to the extent I consider necessary to make a "just and equitable" determination. The poor standard of the committee submission is compounded by the signing of the submission by the secretary, Rosanne Eastmond. Given that the application challenges the position of secretary, even a rudimentary understanding of the concept of conflict of interest would indicate that Ms Eastmond should not have put her name to the submission, or in any way have participated in committee’s discussions regarding the submission to be made. The submissions of owners, though somewhat more enlightening than the committee submission, are nevertheless of little assistance. Again they do not in any real way address the specifically disputed aspects of the election, but rather support or oppose the application based on that owners’ perception of the applicant.

As for the application, it should be noted that, in order to be successful in the first order sought, the applicant needs to succeed in respect of each of his three claimed bases for why particular ballots should have been counted, or in the case of one ballot, not counted. In particular, he claims one alleged invalid vote to be valid on the basis that the invalidity was of a minor nature, but in respect of another ballot which was counted, he claims that the invalidity was of a material nature, and therefore should have invalidated the vote. I consider this analysis to be somewhat artificial, and clearly intended to suit the applicant’s purposes.

Secondly, the applicant claims that:

The 2 ballot papers that were not included in the count on the day, by the process of elimination, were both for the followings candidates (the stated list includes the applicant). Ballots in favour of the above candidates were lodged by: Lots 5, 11, 16, 20, 29, 31, 34, 35, 46, 47, 56, and 65. It could have been any two of the above ballot papers that were accidentally omitted from the count.

This statement, which is vital to the applicant’s success in this application, requires a number of leaps of faith on my part I consider. Firstly, "the process of elimination". I have no understanding of the applicant’s "process of elimination". In respect of allegations of disputed counts of votes or ballots, it is almost invariably the case that the applicant is able to specifically identify the relevant lot for which the vote is alleged to be counted / not counted or valid / not valid. Here, the applicant, by a "process of elimination" I don’t understand, is contending that two non specified votes were not counted. Moreover, whilst he can’t specifically identify the votes not counted, he nevertheless is able to assert that these votes were for him. Sorry, but the logic of all this escapes me, and I am simply not prepared to accept such vague and unsubstantiated contentions.

Further, another aspect which I do not understand, but which caused me serious reservations is the delay in the making of this application, and its circumstances. The applicant states:

A chance check of the ballot paper, on Thursday 13 January 2005, and a double check on Monday 17 January 2005 revealed that ...

The election was held on 22 October 2004. Do I assume, in the absence of any explanation, that for 3 months the applicant accepted the outcome of the election, but on a "chance check" of records three months later, suddenly discovers significant discrepancies. This aspect lacks credibility in my view. I conclude that the applicant must have had some basis or motive for checking records some three months after the election. Whilst I am not suggesting anything on the applicant’s part (though others have) I do have serious reservations arising from this aspect, and concerns at relying on the applicant’s material.

For the above reasons, I have dismissed this application. I am satisfied that the election of the secretary should now not be interfered with.