Focus [2008] QBCCMCmr 201 (19 June 2008)

Number of Scheme:	12996
Name of Scheme:	Focus
Address of Scheme:	114 The Esplanade SURFERS PARADISE QLD 4217

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

I hereby order and declare as follows-

that the three motions resolved by voting outside a committee meeting on or about 21st November 2007 were and are invalid;
that it shall be recorded in the minutes of the next committee meeting that the said Motions 1, 2 and 3 are held to be invalid by this order and are of no effect;
that Motion 16 put to an annual general meeting on 21st December 2007 was and is an invalid motion;
that it shall be recorded in the minutes of the next general meeting that Motion 16 put to the annual general meeting on 21st December 2007 is held to be invalid by this order and is of no effect.

This is an application dated 11th March 2008 by Lorraine Bryant, co-owner of Lots 30 and 89 in the scheme (the Applicant) against the body corporate of Focus CTS 12996 (the body corporate) for an order declaring as follows –

that “the motions and resolutions of the committee of Focus Apartments dated 21st November 2007 and of the members in general meeting of no confidence in Lorraine Bryant are invalid and have always been void and of no effect.”

“Focus” CTS 12996 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). There are 125 lots in the scheme created under a Building Unit Plan of subdivision.

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 authorization 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)).

Section 242 Act requires that where an applicant seeks an outcome to invalidate a motion or a meeting, that the application must be made within three months of the date on which the motion was tabled or the meeting was held. An adjudicator may waive compliance with this section for “good reason.” In this matter, the Applicant lodged her application shortly outside the three month period in respect of the outcome sought for the voiding of the committee resolution on 21st November 2007. There is no reason given by the Applicant for lodging the application out of time. However, I note that the Applicant was not aware of the decision of the committee until 3rd December 2007; that she felt obliged to engage a solicitor to make her application; that the period between 21st November 2007 and 11th March 2008 encompassed the Christmas holidays; and that the application was only 19 days out of time. For this reason, I am prepared to consider the application for the first outcome sought without “good reason” being drawn for me by the Applicant, finding the above reasons to be “good reason” enough.

The Applicant, through her solicitors, says that she is a member of the board of Focus Owners Limited, a limited company which has a management agreement with the body corporate. She also became a member of the committee of the body corporate as treasurer from “approximately 2000” until 21st December 2007 and “was active” in Focus Owners Limited until 2002. As committee treasurer, although a signatory on the body corporate account, she did not in fact sign cheques, which were signed by the body corporate manager. Her duties included checking invoices for payment after they had been checked by the chairperson and returning them to the body corporate manager for payment. She discharged her duties as treasurer in a completely satisfactory manner.

On 3rd December 2007, she received a notice from the body corporate manager saying that she had been removed as “Payments authorising officer” by flying minute of the committee held on 21st November 2007. She had not been notified of the motion to be resolved by flying minute. The committee also passed a “no confidence” motion against her. On 4th December 2007, she wrote to the body corporate manager about these events, but received no response.

On 11th December 2007, the Applicant wrote personally to all lot owners. She said she had worked voluntarily for 19 years to benefit Focus, and had been re-elected as treasurer each year. She explained that it was because she had enquired after documents and could not get access to records that she had tried to create a “show down” by asking for a list of sundry creditors. This led to the dismissal of the “Office Manager” and the resignation of “a Focus director” which was investigated by accountants and the police and about which the lot owners had news. She said that she had rectified a very poor state of book-keeping. She says that she refused to authorise payments for certain invoices that did not meet “the normal criteria I use as an experienced person with limited responsibilities...”

On 14th December 2007 the Applicant’s solicitors wrote to the body corporate manager Strata-Jem Pty Ltd warning of defamation action “in the event of the publication of any defamatory material or innuendo concerning her or concerning the method in which she discharged her duties as treasurer...”

The annual general meeting was scheduled for 21st December 2007, and the Applicant received only 17 days notice of this instead of the required 21, although she does not want to rely on this fact. Motion 16, submitted by the committee, was that the body corporate “endorse and approve” the vote of no confidence in the Applicant, which she says “the Body Corporate Committee passed.” There was no explanatory material among the documents provided to lot owners about the “no confidence” motion. At the annual general meeting, Motion 16 was passed 39 – 38.

The Applicant says that it is “significant” that there was no explanatory material about Motion 16, and that no explanation has ever been given to her, so she has not been able to respond to the claim. She says that the resolution of the committee should be set aside since it was resolved without any explanation to her; she was not given notice of the flying minute or the committee’s proposal to put the motion; she has not had the opportunity to respond; she was unaware of the committee’s decision to put Motion 16 to the annual general meeting; and she had less than 21 days notice of the annual general meeting. She says that this is contrary to natural justice.

The Applicant attended the annual general meeting and gave an explanation to “a small minority” who were present.

“It is now accepted that the rules of natural justice apply to unincorporated associations and to social clubs. Equally they will apply to a body corporate where there is nothing in the legislation that expressly or by implication prohibits the rules of natural justice applying to the conduct of its affairs.”

Furthermore, they say that rules of natural justice apply since the Applicant’s reputation might be affected. She should have been afforded the opportunity to reply to any complaints against her. She should have been advised that the committee was considering a vote of no confidence against her. Since she had no notice of the “flying minute” it should be invalidated.

The solicitors’ submission is that explanatory material should be provided for an annual general meeting by virtue of section 40C Accommodation Module, and that ‘company procedures’ require that where a vote might have “personal and community disadvantages or consequences” to a person, that person should be given details and have the opportunity to respond. In those circumstances the resolution of the general meeting should also be set aside.

The lot owners also had no opportunity to be aware of the facts or to question what had occurred prior to voting, particularly in the light of the short notice being given of the meeting. Both the resolutions of the committee and the body corporate at the general meeting “reflected [the Applicant’s] reputation as a member of the committee and as a member of the body corporate” since she was not re-elected as treasurer at that meeting. The Applicant submits -

“It is impossible to argue that the no confidence motion did not have a significant impact on the vote” for her as treasurer; and

Further, she has noted from the minutes of the annual general meeting that there is no record of a voting paper being submitted from Lot 78, belonging to Laurie Doorey. She believes that Mr Doorey sent his vote by registered mail. She makes no submission about the way in which Mr Doorey might have voted.

In accordance with section 243(2)(b)Act, submissions were invited from all lot owners.

Lindsay Stewart, owner of Unit 6 says that he supports the vote of no confidence, and that the funds of the body corporate have historically been wrongly merged with the company Focus Owners Ltd for some time, during the period when the Applicant was treasurer of both the body corporate and Focus Owners Ltd. The body corporate has taken steps to rectify its financial position so that the funds of Focus Owners Ltd and the body corporate are now kept separate.

John Irish, owner of Unit 82 would like the Applicant to be “reinstated” as he has every confidence in her abilities as treasurer.

Ernest Hall, owner of Lot 47, says the Applicant’s integrity is beyond reproach. He does not think the committee acted properly.

The body corporate manager Strata Jem Pty Ltd made a submission on behalf of the body corporate. committee. It says that notice of the general meeting was mailed on 29th November 2007. There was no explanatory schedule included for Motion 16 which was the committee’s choice.

Contrary to the Applicant’s submission, the Applicant was able to reply to Motion 16 by writing to all owners on 11th December 2007, so she was afforded natural justice and all lot owners had the opportunity to read her letter. Ernie Hall also wrote an undated letter to all lot owners prior to the meeting saying that the Applicant was the “single person on the body corporate committee that (sic) has shown honesty and integrity in all her dealings and has been the conscience of this body corporate committee for the past 2 years...” and inviting owners to vote her in again as treasurer. The committee provides a copy of both these letters in its submission.

The committee admits that the Applicant was not given notice of the committee “flying minute” on 21st November 2007. This was because “she had a conflict of interest in the matter.” The step was taken because the Applicant was refusing to pay invoices approved for payment by the committee and the service providers would have taken recovery proceedings.

The committee disputes the Applicant’s statement that she did not sign cheques. It says that the Applicant used to sign body corporate cheques prior to her appointment as “Accounts Payable Authorisation Officer” which occurred at a committee meeting on 15th June 2007.

The committee also advises that a copy of an Auditor’s report made on 27th October 2007 was sent with the notice of general meeting to all lot owners. The auditor, Abacus Accounting and Business Consultants, noted that the previous body corporate manager paid suppliers’ invoices even though those invoices bore no indication of having been approved for payment. The committee notes that since approving invoices for payment was the Applicant’s task, the auditor’s remarks would have been read by lot owners. I understand the inference to be that there is criticism of the Applicant by the auditor, although this is not stated by the auditor, nor pointed out to lot owners. For example, the previous body corporate manager might have been acting without the knowledge of the Applicant. However, the committee merely point out that the auditor’s report was included for the information of lot owners with the papers for the meeting.

The committee sees no connection between Motion 16 and the Applicant not being elected as treasurer. It says that canvassing for committee positions was “very robust” and there were two candidates for treasurer, one promoted by Focus Owners Ltd and the other promoted by the committee. It was the same for the position of chairperson, with the committee’s preferred candidate gaining 54 votes and the other candidate gaining 28 votes, about the same number of votes as the Applicant got for treasurer. All the executive positions reflected the 54 and 24/25 split, so Motion 16 had nothing to do with it. Finally, they say that there is “no utility” in making the orders sought by the Applicant.

The Applicant exercised her right of Reply. She says that whilst the specific facts of the “conflict of interest” alleged are not given, the conflict could not have arisen about her being a committee member and being on the board of Focus Pty Ltd at the same time, since she had ceased being on the board of Focus Pty Ltd three years before these resolutions were made.

She asserts that she has been denied the opportunity to respond to the committee because she had no notice of the “flying minute”. She states that “at least one vote in her favour” (the Doorey party vote) was not counted, which would have made the voting on Motion 16, 39-39 and not passed.

In this matter, the Applicant seeks to overthrow decisions both of the committee made by a vote outside a committee meeting on 21st November 2007, and a resolution of the body corporate made on 21st December 2007. She explains in her Reply that her application “does not relate to or complain about [her] losing her position as Treasurer.”

The motions to be voted on outside a committee meeting were three in number. Firstly, that certain unpaid bills be paid; secondly that the Applicant “be removed as the nominated payment authorizing officer, and replaced by the Secretary, Mr S Stojanovic, ” and thirdly, that the committee would propose a motion at the forthcoming annual general meeting of “no confidence” in the Applicant’s “ability to carry out the duties of the Treasurer.” Six committee members were invited to cast their votes, excluding the Applicant. The committee passed the second motion by voting 4 – 1 in favour. There is no record provided in the application, of the vote of the committee on the first or third motions, but all three motions were confirmed at the committee meeting of 18th January 2008 and in the Notice for the annual general meeting to be held on 21st December 2008, Motion 16 read as follows -

“Body Corporate Treasurer – Mrs Lorraine Bryant
Submitted by Committee

THAT the Body Corporate endorse and approves a motion put by existing Committee Members of “No Confidence” in Mrs Bryant’s ability to carry out the duties and responsibilities of the Treasurer of the Body Corporate.”

From the Applicant’s submissions it appears that the motions she really wishes to overturn are the “two motions of no confidence, which for reasons stated were void and of no effect.....’

There is no doubt that all members of the committee should have been advised of the notice of the motions to be voted on outside a committee meeting on 21st November 2007. Section 33 Accommodation Module states as follows –

(1) A resolution on a motion before the committee is a valid resolution of the committee, even though the motion is not passed at a meeting of the committee called and conducted
under division 7, if—

(a) notice of the motion is given to all committee members or, in an emergency, as many members as it is practicable to contact; and

(b) a majority of all voting members of the committee entitled to vote on the motion agrees to the motion.

(2) The notice must be given in writing, and the members’ agreement to the motion must be given in writing but, in an emergency, the notice may be given, and the member’s agreement expressed, orally or by another appropriate form of communication.

(3) Advice of the motion must be given, at the time notice of the motion is given or, in an emergency, as soon as reasonably practicable, to each lot owner, other than a lot owner who—

(a) has instructed the secretary that the lot owner does not wish to be given advice of committee meetings; and

The body corporate committee does not pretend that the matter was an emergency, or that it was unable to contact the Applicant. It simply ignored her since she had a conflict of interest and could not vote on the matter. There is also no evidence that lot owners were advised of the motion to be decided, such as is required by section 33(3).

Section 32 Accommodation Module states that a committee member cannot vote at a committee meeting or on a motion to be decided outside a committee meeting if the member’s interest in an issue being considered by the committee “could conflict with the appropriate performance of the member’s duties about the consideration of the issue.”

Whether or not there was a conflict of interest here is debatable. The motion as worded was simply to put a motion to a general meeting. The committee was not casting a vote of “no confidence” in the Applicant, but proposing that the matter be decided by the full body corporate at a general meeting. However, when the motion is prepared for the general meeting the word “endorse” has crept into the wording of the motion, thereby indicating that the committee has already cast a vote of “no confidence” in the Applicant and is seeking approval of that action from the full body corporate.

I consider that had the wording of the motion decided outside a committee meeting been clearly a vote of no confidence by the committee in the Applicant, then the Applicant would have had a conflict of interest in her natural desire to vote against such a motion; but because of the way in which the motion was worded, such a conflict did not arise. She would be voting whether or not to put a motion to a general meeting. Whilst she might have a strong opinion about the way she would vote on that matter, I do not consider that her response could conflict with the appropriate performance of her duties.

However, the above consideration is somewhat academic. There is no excuse for any committee member, whether or not with a conflict of interest, to be excluded from the notice of the motion, or the meeting at which the issue is to be decided by other committee members. For example, where a committee member wishes to keep a pet in the scheme and that is a matter which may be decided by the committee, whilst the aspiring pet owner may not vote, he or she is entitled to put his or case for the motion, and be available to answer questions from other members of the committee.

Equally, if the committee wished to change the duties given to the Applicant in her position as treasurer, then she should have been aware of the motion and been able to speak to it, if not vote, and to answer questions of fellow committee members. Not to invite the Applicant to speak on these motions and to give her no notice that the motions were to be dealt with by way of “flying minute” was an act of underhand and deliberate wrongdoing, in which the remainder of the committee apparently conspired. The Applicant was unaware of the motions put and decided outside a committee meeting until she was advised by a letter dated 28th November 2007 from the body corporate manager and received by her on 3rd December 2007. This seems a particularly cowardly way to have notified the Applicant of the committee’s decision taken a week earlier.

Further, it is not entirely clear what the committee actually decided. There were three motions to vote on by “flying minute” on 21st November 2007. Only the result of Motion 2 was made known to the Applicant by letter dated 28th November 2007. The Applicant thereafter sought a copy of “the flying minute showing how 4 of 5 Focus Committee Members acted to remove me as the person to authorise payments.....”

The other two motions were confirmed as passed at the next committee meeting on 18th January 2008, but there are no minutes provided of the motions decided outside a committee meeting, and no result of the voting provided in the application.

It cannot be said that the committee acted reasonably or properly in deciding these motions without notice to the Applicant. I am asked to invalidate the motions of 21st November 2007. It may be of no practical purpose now to invalidate the motion passed to pay invoices, since these have surely now been paid. Equally, to invalidate the motion to remove the Applicant as payment authorising officer has no practical effect since she is no longer treasurer. To invalidate Motion 3, also has no practical effect since the motion was to propose a motion to a general meeting, which was subsequently done. However, these motions should not be allowed to stand because of the complete failure of procedural fairness, and breach of legislation, on which they are wrongfully founded.

The notice for the general meeting was sent in accordance with the legislation to all lot owners prior to the meeting, even though the Applicant did not receive her copy within 21 days of the meeting. The Applicant is not relying on this point in her application, and rightly so, since there are many occasions when ‘receipt’ within 21 days cannot be demonstrated. The legislation requires that a general meeting is held at least 21 days after notice “is given” to lot owners (Section 41 Accommodation Module), and unless an applicant can demonstrate that a shortened period of notice has acted to his or her detriment, it is unlikely that this Office would overturn a general meeting on that fact alone. The body corporate manager says that the notices were posted on 29th November 2007, giving a bare 21 days should the recipients receive their mail on the next day. A more realistic time-scale might be considered by the body corporate for the convenience of interstate or country-living lot owners but that is a matter for the body corporate and its body corporate manager to discuss.

Lot owners were able to vote on Motion 16 by post or at the meeting. Lot owners are presumed to be competent and literate people, and there was rightly no information from the committee sent out in respect of Motion 16 with the notice. If lot owners did not understand the motion, or wanted more information, they could have contacted the committee, or contacted the Applicant, or both. They might have discussed the motions with each other. They might have decided to attend the meeting before casting a vote.

The Applicant says that the committee erred in not sending out explanatory material about Motion 16. However, Section 40C(6) Accommodation Module specifically requires the committee not to send any explanatory material other than that required on the “explanatory schedule” in certain specified situations. Thereafter, the committee may if it wishes give information it is own separate schedule.

(1) A voting paper for a general meeting must be accompanied by an explanatory schedule if—

(a) the submitter of a motion stated in the voting paper gives the secretary an explanatory note about the motion, and the note is not longer than 300 words; or

(d) the voting paper states a motion proposing that a regulation module be applied to the community titles scheme that is different from the regulation module identified in the scheme’s community management statement; or

(e) an explanatory schedule is required to accompany the voting paper under another provision of this regulation.16

(2) The explanatory schedule must, for a motion mentioned in subsection (1)(a), include only the following—

(3) The explanatory schedule accompanying a voting paper for an annual general meeting must, for a motion about adopting administrative and sinking fund budgets, include an explanatory note stating that, under section 92A,the amount of a budget adopted at the meeting may be more or less than the proposed budget amount by an amount equivalent to not more than 10% of the proposed budget amount.

(4) The explanatory schedule must, for a motion with alternatives, include each of the following—

(a) each motion (original motion), the substance of which is stated as an alternative under the motion with alternatives, in the form in which it was submitted under section 39;

(b) an explanatory note about each original motion, given to the secretary by the submitter of the original motion, if the note is not longer than 300 words;

(i) for the motion, by voting for the motion and for 1 of the alternatives; or

(5) The explanatory schedule must, for a motion mentioned in subsection (1)(d), include an explanatory note, in the approved form, explaining the effect of the proposed change.

(6) To remove any doubt, it is declared that an explanatory schedule for a motion must not contain explanatory material, other than an explanatory note mentioned in subsections (3) to (5) or required under another provision of this regulation, written by a person other than the submitter of the motion.

(7) A notice of a proposed general meeting may be accompanied by explanatory material given by the committee, other than an explanatory note mentioned in subsections (2) to (5), if the material is contained in a schedule of the committee’s explanatory material that is separate from the explanatory schedule.
Example for subsection (7)—

The schedule of committee’s explanatory material might contain general explanatory material that does not relate to a particular motion stated in the voting paper, or information relating to a motion.

(8) Explanatory material may accompany a voting paper or a notice of a proposed general meeting only if required or permitted under this regulation.

Where a postal vote at an annual general meeting is sent out, the body corporate must send an “explanatory schedule” simply telling the voter that the budgets may be passed within a 10% variation. At the annual general meeting, certain “statutory motions” must be put, which include the budgets, and the insurance for the scheme, and Section 40C(1)(b) means no more than that. Such an “explanatory schedule” would not be needed for an extraordinary general meeting where no statutory motions are to be considered.

For the removal of doubt, section 40C(6) says that the “explanatory schedule” must not contain “explanatory material” other than that written by the submitter of the motion (up to 300 words) or as set out in section 40C as being required. The committee may however accompany the notice with explanatory material, other than that required by sections 40C(2) to (5) if the material is contained in a separate schedule (Section 40C(7) Accommodation Module). This could relate to general information not related to a particular motion.

The overall effect of Section 40C is to restrict explanations being sent out with motions by the submitters of those motions, including the committee. The parliamentary explanatory notes to Section 40C, which came into force as an amendment in 2003 state as follows –

“Section 40C provides for a new schedule to accompany a voting paper for a general meeting which will contain explanatory material for the voters for the meeting.

This schedule will contain the information necessary to assist voters to vote on the motions on the agenda of the meeting. The inclusion of this material in a mandatory document will improve a voter’s ability to identify what is explanatory material and will prevent the voting paper of a general meeting from becoming a long and confusing document. Under the current provisions it is extremely common for the motion and the explanation to be rolled together in a long document. The splitting of the two will limit this problem.

Voters will be made aware of the existence of the explanatory note for a motion through a notification in the voting paper. Section 40C(1) provides for the material to be included in the schedule. The maximum length of the explanatory note, which is given by the submitter of a motion, has been increased from 100 to 300 words. The amendment will not significantly increase the meeting costs of a body corporate and will allow voters to be properly informed as to the intent of the motion.

It is also important that the explanatory material includes advice as to how to vote for a motion with alternatives.........

Some practices have been that the committee has, after receiving a motion from an owner, included in the meeting notice its own argument regarding the motion in a way that did not allow voters to distinguish between the material provided by the person moving the motion and the material provided by the committee. In some instances the committee has altered the explanatory material provided by the owner. This places the committee in an unfair position of being able to manipulate the meeting material to seek to influence the manner in which persons vote. For this reason, the schedule must include the explanatory note in the form given by the motion’s submitter. The committee can include an explanatory note for a motion it submits to the meeting, and the committee can also include general explanatory material if it does not relate to a particular motion.

However, in its role as the elected representatives of the body corporate the committee is often aware of particular information in relation to a matter that it considers the voters should know when deciding how to vote on a motion. The committee will be likely to present this information at the general meeting, but those persons not attending the meeting do not have access to this information before they decide how to vote on a motion. Provision is made for the committee to prepare a separate Committee Schedule containing such information. This allows the committee to provide appropriate background information but distinguishes this from the explanatory material.....” [1]

There was no lawful requirement on the committee to send any explanatory material about Motion 16.

The Applicant was able to write to all lot owners about Motion 16. Her letter dated 11th December 2007 provided clear explanatory material, and put the Applicant’s case that she was a good treasurer being unjustly criticised by certain members of the committee because she was too thorough at her job. Submitter Ernie Hall also canvassed lot owners on the Applicant’s behalf.

However, where the committee might have misled voters is that the motion asks the body corporate “to endorse and approve” the committee’s motion, suggesting that the committee has already cast a vote of “no confidence” in the Applicant. This was not the case, even though the committee might have thought this was what it was doing on 21st November 2007, and it appears that this is how the motion passed on 21st November 2007 was read by the Applicant.

I have some difficulty generally with the relevance of a motion of “no confidence” which has no meaning or practical effect in bodies corporate. The committee is chosen each year, and if there is a perception that the treasurer, or any other member of the executive committee, each of whom are volunteers, is not doing the job expected of them, then the legislation is geared to allowing lot owners to nominate themselves, or another lot owner, for election at the next compulsory annual general meeting. A vote of “no confidence” by the committee or the body corporate is meaningless unless steps are taken at the same time (for example under Section 23 Accommodation Module) to have the committee member removed from office. Section 23 specifically does not require any reasons to be given when a member is removed from office by ordinary resolution of the body corporate.

The duty of a committee member is not akin to a board member of a company, although there are several indications in submissions that the committee, and the Applicant herself, believe this to be the case. The executive members of a committee have no individual power; they have almost no individual liability; they are intended to be unpaid although payments to them may be approved.

I have considered whether any lot owner, or group of lot owners, could also have put up a similar motion, for example, “to endorse and approve 24 lot owners in their view that they have no confidence in X as the next chairman.” As a canvassing tactic it would be highly unusual. I am also of the view that it would be ruled out of order by the chairperson, since the motion, if carried, would not be enforceable, and would simply express a meaningless opinion. (Section 45(1)(1)(ii) Accommodation Module.) The body corporate is not being asked to “do” or “not do” anything. Equally, a motion that the committee, has no confidence in someone to be able to perform an executive role is unenforceable and should not have been allowed to stand.

I have also considered whether Motion 16 was fair. The choosing of the members of the committee must happen at each annual general meeting of the body corporate (Section 12(1) Accommodation Module). Therefore, all positions on the committee become vacant at the close of each annual general meeting when the new committee is elected. There was therefore no point in Motion 16 since the incumbent treasurer, in whom the committee had no confidence, was already vacating the position. Motion 16 had only one objective and that was to knock the candidacy of the Applicant as treasurer for the forthcoming year. The committee was clearly saying to the body corporate: “we do not want you to vote for the Applicant as treasurer.” There are no guidelines about how lobbying may be done at election time, and the body corporate manager advises that there were two distinct camps promoting “their” candidates and that the campaign was “robust.” However, I am of the view that where a committee puts forward an unenforceable motion with the express intention of promoting its own candidate, that such lobbying borders on the unfair. I find that the motion as proposed by the committee to an annual general meeting was not reasonable and that the committee failed to act reasonably in anything it does in relation to carrying out body corporate functions, contrary to section 94(2) Act.

However, there is no evidence that lot owners were swayed at all by Motion 16 in their choice of treasurer. Thirty-eight people opposed Motion 16, perhaps because they felt it was unfair, but only 25 people voted for the Applicant to be the next treasurer. Not one lot owner has made a submission that Motion 16 influenced his or her vote, nor has any lot-owner made a submission that his or her vote was not counted on Motion 16, as has been suggested by the Applicant. The Applicant was able to send out her own promotional material after the agenda was sent out, and to address voters personally at the meeting. The Applicant is well known to many lot owners and has volunteered her time for 19 years to the body corporate. She has an established track record which would not be changed by the committee’s motion 16. Lot owners have their own knowledge and information about the management of their body corporate, and no doubt made up their minds against that background. The Applicant is free to stand again as treasurer next year if she wishes to, and lot owners will no doubt vote as they think fit.

There can be no expectation that any one person continues in an executive position or ordinary member position even if that person has held the same position on the committee for many years. Failure to be re-elected says nothing other than that another candidate received more votes. Since committee membership is a voluntary task which involves much hard work, it is often the case that certain members have had enough after one year. Members are not normally elected for their qualifications or personal abilities but only on their willingness to perform a thankless task.

The role of the treasurer is not defined in the legislation. Where a body corporate manager is engaged, there is often not much for a treasurer to do, and it is entirely up to the committee what role the treasurer performs. The role of “Accounts Payable Authorisation Officer” is not known to the legislation.

In conclusion, I find that the motions passed by voting outside a committee meeting on 21st November 2007, and Motion 16 put to the annual general meeting on 21st December 2007 were invalid for the reasons given above. The minutes of the next committee meeting shall record that the three motions resolved outside a committee meeting on or about 21st November 2007 were invalidated by adjudicator’s order. It may well be that the invoices listed in Motion 1 are now paid. The body corporate committee might therefore need to approve payment of such invoices retrospectively, if approval is required.

The minutes of the next general meeting shall record that Motion 16 put to the annual general meeting on 21st December 2007 was invalidated by adjudicator’s order.

This order shall not disturb the membership of the current committee of the body corporate.

I have no authority to make any decision as to whether a vote of no confidence can establish grounds for defamation, and have made no reference to the material supplied by the Applicants’ lawyers about the Applicant’s concern for her reputation.

[1] Body Corporate and Community Management Legislation Amendment Regulation (No.1)2003 Explanatory Notes for SL 2003 No. 263

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Focus [2008] QBCCMCmr 201 (19 June 2008)