Atlantis West [2008] QBCCMCmr 1 (3 January 2008)

Last Updated: 22 February 2008

REFERENCE: 1002-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8790
Name of Scheme:	Atlantis West
Address of Scheme:	2 Admiralty Drive PARADISE WATERS QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Wayne Stevens, the owner of Lot 145

I hereby order that the application for an interim order by Wayne Stevens, the owner of Lot 145 against the Body Corporate for Atlantis West community titles scheme 8790 to prevent the Extraordinary General Meeting dated 3 January 2008 from being held until a replacement returning officer is appointed, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1002-2007

"Atlantis West" CTS 8790

Application
Wayne Stevens, the owner of Lot 145 (Applicant) has sought an interim order against the Body Corporate to prevent the Extraordinary General Meeting dated 3 January 2008 (EGM) from being held until a replacement returning officer is appointed. The Applicant has shown that Logan Irwin of Independent Strata Consultants has been engaged as returning officer for the EGM to decide questions about eligibility to vote, to receive secret voting papers, to count votes and to decide whether a vote is valid. The Applicant seeks a final outcome to appoint a different returning officer. He provided a letter dated 18 December 2007 from Colin Lamont of Unit Owners’ & Body Corporate Alliance accepting nomination as returning officer.

The Applicant states Mr Irwin is a past employee and consultant of Body Corporate Services Pty Ltd (Body Corporate Manager) and continues to maintain a relationship with the Body Corporate Manager and should be disqualified. He provided a copy of a letter dated 28 October 2003 to him from Mr Irwin as body corporate manager from Body Corporate Services Pty Limited.

The Applicant says Mr Irwin acted as returning officer at the last annual general meeting and it was established he colluded with the caretaker manager during the Body Corporate’s consideration of a new caretaking agreement. The Applicant provided a copy of an email from Decima Rossi (stated as being a past secretary) stating in part "Logan Irwin and John Lighart had spent nearly a day together in the BCHQ office going through the papers. Since Logan Irwin has been appointed as the Returning Officer and John Ligthart is not a committee member, it seems inappropriate for either to be involved in reviewing AGM documentation before distribution".

Jurisdiction
"Atlantis West" community titles scheme 8790 is scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application. Section 279(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, than an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act.

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 19 December 2007 I invited submissions from the committee regarding the interim order application, and a copy of the application was provided to the Body Corporate Manager for distribution to committee members.

Committee submissions
By letter dated 21 December 2007, the chairperson Mr Kilner made submissions he states have been endorsed by the committee.

Mr Kilner opposed the application stating there is no basis necessitating Mr Irwin’s removal. He says Mr Irwin has on all previous occasions when appointed as a returning officer been most efficient and honest. Mr Kilner states the committee decided that a motion it submitted to the EGM be decided by secret ballot so owners can vote freely and without any undue influence.

Mr Kilner provided an affidavit prepared by Mr Irwin and sworn on 20 December 2007 about the application saying (in part) "I am certainly not related to the Body Corporate Manager nor do I hold shares in nor am I a Director or Officer of that Company. Further I am not in partnership with the Manager. I once was employed by Body Corporate Services but that employment terminated on 12^th December 2003. In 2004 I commenced an independent strata consultancy service which includes performing the role of returning officer. I continue in that business today and presently independently contract with more than 20 body corporate management companies ... From time to time I do consult with Body Corporate Services, but only as an independent contractor. I am not in position to control or influence in any way the conduct of Body Corporate Services ... I am not under any obligation to act in accordance with the directions, instructions or wishes of that Company ... I ... deny that I am in any way associated with Body Corporate Services ... As for the innuendo contained in the email of Decima Rossi that I somehow conspired with John Ligthart to ‘go through the papers’ I can state that on 19^th February 2007 I went to the offices of Body Corporate Headquarters and inspected the undistributed notices and agenda of the Annual General Meeting".

Determination
The interim order application
Given section 279(1) of the Act, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the Applicant does need to establish the circumstances of the application warrant the making of an interim order.

The Applicant disputes the committee’s appointment of Logan Irwin as returning officer for the EGM. Given the meeting is to be held on 3 January 2008, urgent circumstances exist to warrant consideration of the interim order application.

Applicable law
To assist me in determining whether it is just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I consider it relevant to briefly consider whether the application raises any serious legal question that will need to be determined. If the application raises a serious legal question then it may be appropriate to make an interim order pending final determination.

Section 53(1) of the Standard Module provides the committee may recommend that a motion be decided by secret ballot. Section 54(1) of the Standard Module provides that the Body Corporate must appoint a returning officer for a general meeting at which a motion is to be decided by secret ballot. Section 54(3) prescribes returning officer functions. Section 54(4) provides that a lot owner; a person engaged as a body corporate manager, service contractor or letting agent; or an associate of a person engaged as a body corporate manager, service contractor or letting agent is not eligible for appointment as a returning officer.

Section 309(1) of the Act states that for this Act, a person is associated with someone else if a relationship of a type to which this section applies exists between them; or a series of relationships of a type to which this section applies can be traced between them through another person or other persons. Section 309(2) specifies the types of relationships to which section 309 applies.

Decision
The Applicant has not disputed the way Mr Irwin was appointed or the procedures for calling the EGM. He does not question the appointment of a returning officer for the EGM and has nominated an alternative returning officer. He only questions Mr Irwin’s eligibility for appointment.

Section 54(4) of the Standard Module prescribes the eligibility criteria. Given the claims being made, the only basis for disputing the appointment is that Mr Irwin is an associate (as prescribed by section 309(2) of the Act) of the person engaged as Body Corporate Manager for the scheme or is an associate of the person engaged as a service contractor for the scheme who is also a letting agent for the scheme (caretaking service contractor).

A past relationship of employer and employee is not one stated in section 309(2). It is not disputed that Mr Irwin has provided consultancy to the Body Corporate Manager, but the Applicant has not demonstrated that section 309 applies in the circumstances. The chairperson has indicated the committee opposes the application and has provided an affidavit made by Mr Irwin explaining his relationship with the Body Corporate Manager.

It is apparent that Mr Irwin has been appointed as a returning officer for a previous general meeting or meetings. It would seem that any previous appointment has not been disputed under the dispute resolution provisions of the Act. The Applicant makes an unsubstantiated statement in relation to the last annual general meeting which seemingly involves the caretaking service contractor and not the Body Corporate Manager. The Applicant has not explained how the event involving an inspection of meeting documentation constitutes a relationship of a type mentioned in section 309(2) which would be relevant to the appointment for the EGM.

In the circumstances, I am not satisfied the Applicant has raised a serious legal question nor otherwise established any basis to warrant consideration as to whether the interim order being sought should be made. The application for an interim order is dismissed.

This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.