Ballah [2008] QBCCMCmr 76 (5 March 2008)

Name of Parcel:	Ballah
Number of Plan:	Upper Plan No. 2
Address of Parcel:	11 Hanlan Street SURFERS PARADISE QLD 4217

I hereby order that the application by Christine Ruth Wright, the owner of Lot 94 for an interim order that “no further meetings or decisions are to be held or made by the existing committee”; and further, a final order as follows:

Clarification of their (Lionel Krongold and David Goldberger) position on the committee;
If they are ineligible then they are to resign immediately;
As per BUGTA Act the remaining members of the committee will appoint a chairman and new committee members,

is dismissed.

Application
Christine Ruth Wright, the owner of Lot 94 (Applicant) seeks an interim order that “no further meetings or decisions are to be held or made by the existing committee”. Further, the applicant seeks a final order as follows:

Jurisdiction
Upper Plan No. 2 (UP2) is a plan under the Registration of Plans (H.S.P. (Nominees) Pty. Limited) Enabling Act 1980 (ROPE Act).

Section 3 of the ROPE Act makes provision for the application of the Building Units and Group Titles Act 1980 (Act) stating:

Save to the extent that this Act is inconsistent with the provisions of the Building Units and Group Titles Act 1980 in which case the provisions of this Act shall apply, the provisions of that Act which relate to the subdivision of land by the registration of building units plans and apply in respect of those plans shall apply in respect of the subdivision of each of parcel l and parcel 2 by the registration of upper plans and lower plans pursuant to this Act and in respect of those plans as if those plans were building units plans under that Act and for those purposes references in that Act to building units plans, lots, common property, parcel, subdivision of land and body corporate shall be construed as references to upper plans or lower plans, lots, common property, parcel, subdivision of part of parcel 1 or, as the case may be, of part of parcel 2 and a body corporate of an upper plan or lower plan respectively within the meaning of this Act.

The Act applies for the operation of the ROPE Act (section 5A, Act). Part 5 of the Act concerns disputes. Part 5, division 3 makes provision for orders by a referee. Within division 3, section 77 provides general powers of a referee to make orders. Relevantly, section 77(1) provides a general power that a referee may on application of a body corporate ... a proprietor ... in respect of a parcel, make an order on any person entitled to make an application under this subsection ... 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.

Section 76(2) provides that where an applicant for an order under section 77(1) states in his or her application that the applicant requests an interim order, the referee may, if the referee is satisfied on reasonable grounds that, by reason of the urgent circumstances of the case, the referee should do so make, under this subsection, any order that may be made under section 77(1) with respect to the application. Section 76(3) provides that an interim order may be made notwithstanding that any power or duty of the referee under section 73(1) to give written notice of the application to the body corporate and to any affected person has not been exercised.

As the proprietor of a lot in UP2, the Applicant is entitled to make an application under section 77(1) against the Body Corporate. The orders being sought by the Applicant relate to the eligibility of certain persons (Lionel Krongold and David Goldberger) to be members of the committee of Ballah, and if determined that they are not so eligible that they “resign immediately”. In the interim, the applicant seeks that no further meetings be held or decisions of the committee made “until this matter is resolved”. The orders sought are not of a nature dealt with specifically in sections 79 to 94B of the Act, and are capable of being made under sections 76 and 77(1). Jurisdiction exists with respect to the orders being sought.

Following receipt of the application, I undertook the investigation of certain matters relating to the eligibility of Lionel Krongold and David Goldberger to be members of the committee of Ballah. This is the aspect sought by the applicant in both the interim and final orders of her application. In particular, I wrote to the Secretary of Ballah Body Corporate in the following terms, quote:

I am writing to you in my capacity as the Referee, Building Units and Group Titles, and pursuant to my power of investigation with respect to an application made (section 73(1)(f) of the Building Units and Group Titles Act 1980 (the Act)).

At present, I am considering only the requested interim order sought by the above applicant. As secretary of the Ballah Body Corporate you have made a submission in respect of the above application. After referring to the relevant section of the Act dealing with eligibility for election to the committee (section 42(6)), you have stated in your submission that:

Nominations were submitted by Alan Goldstone, the Company Nominee appointed by Zackenroller Pty Ltd for Lot 82, for Lionel Krongold for the position of Chairperson and David Goldberger for the position of an Ordinary Member of the Committee, for the Ballah Body Corporate Committee elections for the 2006/2007 financial year of the Body Corporate. Lionel Krongold and David Goldberger were duly elected to these positions at the AGM held on 11th April 2007.

Clearly, you are submitting that the basis of Messrs. Krongold and Goldberger’s eligibility for election to the committee is on the basis provided in section 42(6)(c) of the Act. I have confirmed that the proprietor of lot 82 in Ballah is Zackenroller Pty Ltd. In the circumstances, please provide to me the written documentation which confirms the following:

Upon receipt of this documentation, I wrote to the applicant on 19 February 2008 in the following terms, enclosing copies of the above documentation received from the secretary:

I refer to my correspondence of 13 February 2008 to the Body Corporate Secretary, a copy of which was provided to you, seeking certain information from the secretary as part of the investigation of your application. Moreover, I believe that letter indicated the relevance of the information I was seeking from the secretary, vis-à-vis your application.

I have now been provided with, and attach for your information, the two documents I requested from the secretary of the body corporate. Whilst I currently do not understand the relevance of the insertion of the name “L. Van Emeden” on the Appointment of Company Nominee form (though it may be that this person is one and the same as the co-owner of lot 82, a Lydia Rotman, as per titles office records), it would seem that the form is prima facie valid as an appointment of Alan Goldstone as the company nominee of Zackenroller Pty Ltd. The second form, the nomination form appears to include a valid nomination by Mr Goldstone as the company nominee of Zackenroller Pty Ltd of both Messrs. Krongold and Goldberger to their respective positions on the committee of Ballah. Prima facie, it would appear that the requirements of section 42(6)(c) of the Building Units and Group Titles Act 1980 (the Act) have been complied or substantially complied with, and the nominations in question would appear to be valid. (my emphasis)

Prima facie it would appear to me that the interim order sought by you would be inappropriate and should be dismissed, and further, that my investigations appear to have clarified the eligibility of Messrs. Krongold and Goldberger to be members of the committee of Ballah, and that no final or other order should be made in respect of your application, excepting perhaps dismissal thereof. (my emphasis)

Before I consider this matter further, including what further investigations (if any) I should make, I seek your response to the above matters, and in particular, what basis you consider you remain entitled to either the interim or final order outcomes you are seeking. (my emphasis) As this is your application, I will allow a period of one (1) week (by COB Tuesday 26 February 2008) for you to reply to this request for further information. Please note that this request is made pursuant to my power of investigation under section 73(1)(f) of the Act.

I am now in receipt of the applicant’s response of 22 February 2008 to my correspondence. The applicant has failed to address, either partially or at all, the question which I raised, and specifically requested that she address. The applicant concludes her reply to me with:

We are most concerned about the voting rights of Messrs Krongold and Goldberger and the decisions that they have made in particular over the past 15 months. It is our understanding that under the (BUGTA ... ) only owners and company nominees can vote. Neither Messrs Krongold not Goldberger fit this requirement and should therefore not be making decisions that affect other owners especially financially. If we are incorrect then it does not make sense that people with no financial interest in the building can make decisions that affect owner’s peace of mind and financial security.

The crux of what I was seeking the applicant address is highlighted above. The applicant has either failed to understand or failed to address the point. Her application concerns eligibility of certain persons (Messrs Krongold and Goldberger) to be on the committee. It has nothing to do with the voting rights of these persons, which the applicant has focused on in her reply to me.

In the circumstances, the applicant has failed to provide any basis on which either the interim or final orders sought by her should be made. I placed the applicant on notice that her failure to do so might result in her application being dismissed. I now intend to order accordingly. I have satisfied myself, based on my investigations, that both the interim and final orders sought by the applicant should not be made.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ballah [2008] QBCCMCmr 76 (5 March 2008)