The Lakes East [2008] QBCCMCmr 369 (10 October 2008)

Last Updated: 6 November 2008

REFERENCE: 0670-2008

ORDER OF A REFEREE

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	107139
Name of Scheme:	The Lakes East
Address of Scheme:	Hope Island Road, Hope Island Resort, HOPE ISLAND

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

Raymond White, a co-owner of lot 57

I hereby declare that the two co-owners of lot 31 have been validly appointed as ordinary members of the body corporate committee for The Lakes East.

STATEMENT OF REFEREE’S REASONS FOR DECISION - REF 0670-2008

“The Lakes East” CTS 107139

The Scheme

“Lakes East” is a residential parcel of Hope Island Resort, an approved scheme under the Integrated Resort Development Act 1987, registered as a group titles plan under, and regulated by the Building Units and Group Titles Act 1980.

The Application

The applicant is Mr. White who is seeking a declaratory order regarding the application of section 42(6) of the Building Units and Group Titles Act 1980 (“the Act”), which provides as follows:
(6) A person is not eligible for election as chairperson, secretary or treasurer of the body corporate or as a member of a committee unless the person is—
(a) an individual who is a proprietor; or
(b) a company nominee of a corporation which is a proprietor; or
(c) an individual who is not a proprietor but who is nominated for election by a proprietor.

The applicant further states that at the last AGM, 9 persons nominated for six positions as ordinary committee members and a husband and wife (co-proprietors) were elected to the committee even though the number of nominees exceeded the required number of committee members. There is some ambiguity in the wording of the subsection because it refers to an individual who is a proprietor rather than individuals who are proprietors .

Submissions

Pursuant to section 73 of the Building Units and Group Titles Act 1980, submissions were sought from the body corporate and the body corporate manager.

The body corporate manager made the following submissions:

• On 26 May 2008 nominations were called for the positions of Chairperson, Secretary, Treasurer and ordinary committee members;
• One nomination was received for the position of Chairperson and 9 nominations were received for the ordinary member positions. No nominations were received for the positions of Secretary or Treasurer;
• Nominations were received from the co-proprietors of lots 31 to each be ordinary committee members. These were accepted as they were in accordance with Schedule 2, Part 1 of the Building Units and Group Titles Regulations 1998 as they were in writing and stated the name of the proprietor making the nomination, the name of the nominee and its status;
• The forms were signed by both proprietors of lot 31;
• As per section 42(6) of the Building Units and Group Titles Act 1980, both nominees fulfilled the eligibility criteria. Subsection 42(6) states that a person is not eligible for election as Chairperson, Secretary or Treasurer or as an ordinary member of the committee unlessthe person is:
  • (a) an individual who is a proprietor; or
  • (b) a nominee of a corporate owner;
  • (c) an individual who is not a proprietor but who is nominated for election by a proprietor.
• On 14 July 2008 notice of the AGM was issued stating that the AGM would be held at 4:30 pm on 5 August 2008 and included all nominations received as well as secret ballot papers;
• At the AGM Mr. Beutel, the body corporate manager, was nominated from the floor and elected to the positions of Secretary/ Treasurer (non-voting) in accordance with section 42(6A) of the Act ;
• The applicant was appointed as a scrutineer at the AGM and verified the count by signing the tally sheet;
• As a result of the ballot 6 nominees were elected as ordinary committee members including both co-owners of lot 31 as they each received sufficient votes to be elected to those positions;
• The BUGT Act does not specifically state that co-proprietors are not eligible to be voting members of the committee and the committee members act in that role for the benefit of all lot owners rather than for their own benefit;
• Both co-proprietors of lot 31 were voted to the positions by secret ballot , indicating support by lot owners.
  

Jurisdiction

Under section 179A of the Integrated Resort Development Act 1997, the for the dispute resolution provisions of the Building Units and Group Titles Act apply to plans approved under that legislation, including the making of orders pursuant to section 94A of the Act.

77 General powers of referee to make orders
(1) A referee may, pursuant to an application of a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel.
(2) Where a body corporate has a discretion as to whether or not it exercises or performs a power, authority, duty or function conferred or imposed on it by this Act, it shall be deemed to have refused or failed to exercise or perform that power, authority, duty or function only if it has decided not to exercise or perform that power, authority, duty or function.
(3) Nothing in this part authorises the referee to make an order of the kind that may be made by the Court under section 25 or 26.
(4) Nothing in this part affects the generality of subsection (1), but an order in respect of any matter dealt with in any other section of this part shall not be made under this section.

Determination

I can appreciate the applicant’s point that there is some ambiguity in the wording of the subsection 42(6) because it refers to an individual who is a proprietor rather than individuals who are proprietors. Indeed, in the majority of community title schemes, which are governed by the Body Corporate and Community Management Act (BCCMA) and Regulation Modules, only one co-owner of a lot can be a voting member of the committee at one time. However, the Building Units and Group Titles Act 1980 which applies to this scheme, is older legislation and is in various respects, materially different from the BCCMA.

Section 42 of the Building Units and Group Titles Act 1980 (“the BUGT Act”), is a lengthy section dealing with the constitution of committees. The relevant subsection for the purposes of this order is subsection 6 which provides as follows:

(6) A person is not eligible for election as chairperson, secretary or treasurer of the body corporate or as a member of a committee unless the person is—
(a) an individual who is a proprietor; or
(b) a company nominee of a corporation which is a proprietor; or
(c) an individual who is not a proprietor but who is nominated for election by a proprietor.

Eligibility for membership of the committee is therefore open to an owner of a lot in the scheme, a nominee of a corporate owner, and finally any individual who is not a member of the body corporate but who is nominated for election by a proprietor. The BUGT Act does not specifically state that co-proprietors are not eligible to be voting members of the committee, and while the relevant subsection uses the words “an individual who is a proprietor “, it should be noted that section 32C of the Acts Interpretation Act 1954 provides as follows:
In an Act—
(a) words in the singular include the plural; and
(b) words in the plural include the singular.

Further I have reviewed the documentation provided by the body corporate manager and note that
the nominations received from the co-proprietors of lots 31 were accepted as they were in accordance with Schedule 2, Part 1 of the Building Units and Group Titles Regulations.

Accordingly, in my opinion, the two co-owners of lot 31 have been validly appointed as ordinary members of the body corporate committee for The Lakes East.