Tower Mill Motor Inn [2009] QBCCMCmr 342 (9 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0390-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1918
Name of Scheme:	Tower Mill Motor Inn
Address of Scheme:	239 Wickham Terrace SPRING HILL QLD 4000

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

Burnitt Investments Pty Ltd, the owner of various lots.

I hereby declare that the purported election of the committee of the Body Corporate for the Tower Mill Inn CTS 1918 (the body corporate) of 16 April 2009 is void. I hereby order that the nominations for committee by Peter Burnitt, Keilly Burnitt, Jana Burnitt, and Scott Drinkwater, were valid notified to all members of the Body Corporate be permitted in addition to all other nominations; I hereby order that all ballots delivered to the general meeting of the body corporate or otherwise for election of the body corporate committee held on 16 April 2009 be tallied by the current acting Chairman; I hereby order that the results of the ballot so held be recorded in the minutes of the meeting; I hereby order that given the majority of lot owners voted in favour of motion 20, the acting Chairman and Secretary is to execute the form of consent of the body corporate and affix the seal of the body corporate for Tower Mill Inn within 7 days of the date of this order, which execution (with or without body corporate seal) is declared effective pursuant to section 138 of the Body Corporate and Community Management Act 1997, failing which Peter Raymond Burnitt is authorised to execute the Body Corporate Consent, the execution of which by Peter Raymond Burnitt shall have the same effect as if duly executed pursuant to Section 138 of the Body Corporate and Community Management (Accommodation Module) Regulation (as amended).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0390-2009

“Tower Mill Motor Inn” CTS 1918

Application

On 24 April 2009, Burnitt Investments Pty. Ltd. (“the applicant”) lodged an application under the dispute resolution provisions of the Body Corporate and Community Management Act 1997 (the Act) seeking the following:

A declaration that:

The purported election of the committee of the Body Corporate for the Tower Mill Inn CTS 1918 (the body corporate) of 16 April 2009 be declared void.

Orders that:

• The nominations for committee of Peter Raymond Burnitt, Keilly Burnitt, Jana Burnitt, and Scott Drinkwater, notified to all members of the Body Corporate be permitted in addition to all other nominations;
• All ballots delivered to the general meeting of the body corporate or otherwise for election of the body corporate committee held on 16 April 2009 be tallied by the Adjudicator or as ordered;
• The results of the ballot so held be recorded in the minutes of the meeting;
• Ronald Dean Davy as acting Chairman and acting Secretary execute the form of consent of the body corporate attached hereinto and marked “Body Corporate Consent” and affix the seal of the body corporate for Tower Mill Inn CTS 1918 within 7 days which execution(with or without body corporate seal) is declared effective pursuant to section 138 of the Body Corporate and Community Management Act 1997 failing which Peter Raymond Burnitt is authorised execute the Body Corporate Consent the execution of which by Peter Raymond Burnitt shall have the same effect as if duly executed pursuant to Section 138 of the Body Corporate and Community Management (Accommodation Module) Regulation (as amended)
  

Scheme Details

Tower Mill Motor Inn (Tower Mill) is a community titles scheme comprising 107 lots and common property. While the majority of lots are used for short term accommodation, some lots are used for carparking purposes and 6 lots may be used for other commercial purposes. The scheme was established upon registration of a building units plan (now described as a building format plan) on 8 April 1994 and is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).

Background

The applicant states that there is a dispute in respect of the:

(a) ruling by the Chairman, Mr. Davy that the nominations of Peter Raymond Burnitt, Keilly Burnitt, Jana Burnitt, and Scott Drinkwater were invalid;
(b) legality of the purported appointment of the committee comprising Mr Davy as Chairman and Secretary, Ms Davy as treasurer and appointment of Messrs Kollmorgen, Crisci and Faggotter to the committee;
(c) legality of the process adopted in the election of the Committee at the adjourned AGM;
(d) the refusal by Mr. Davy and the committee to execute the Body Corporate Consent where the relevant motion requiring same to be executed has been passed.

On 14 November 2008 an Adjudicator ordered the Body Corporate to re-hold the AGM for the scheme within 2 months of the date of the order and that for the “purposes of electing a body corporate committee, nominations made prior to the AGM on 1 August 2008 shall remain effective.” However the AGM was not convened as directed and did not occur until 3.30pm on 16 April 2009 at level 4, 49 Sherwood Road, Toowong.

At the annual general meeting held on 16 April 2009, motions 1 to 20 inclusive were voted upon, votes were tallied and the results declared as follows:

Motion No.	Yes	No
1	51	26
2	34	51
3	32	53
4	84
5	84
6	84
7	84
8	32	54
9	55	31
10	54	31
11	54	31
12	55	30
13	54	31
14	55	30
15	55	30
16	53	31
17	54	31
18	54	31
19	54	31
20	54	31

Motion 20 was that the body corporate consent to the making of an application to the Brisbane City Council by Burnitt Investments Pty. Ltd. was passed and accordingly representatives of the body corporate were required the execute the consent in the terms of the motion passed.

Ballots were delivered to the secretary of the body corporate prior to the commencement of the meeting and prior to the commencement of that part of the meeting relating to the appointment of the committee on 16 April 2009.

On 16 April 2009 Mr Davy acted in the position of Chairman and in that role:

• purported to rule the nominations of Peter Raymond Burnitt, Keilly Burnitt, Jana Burnitt, and Scott Drinkwater were invalid;
• asserted that he was entitled to do so as Chairperson;
• asserted that the basis for doing so was that the persons named above were “associates” of the letting agent;
• failed to state how the Chairperson’s ruling may be reversed by the persons present and entitled to vote upon the issue;
• failed to hear any proposal from the floor of the meeting in respect of the Chairperson’s ruling or to allow it to be put to the vote;
• refused to entertain any further motion or discussion in respect of his purported ruling;
• purported to elect Mr. Davy as Chairman on the basis that there was no other nomination, that of Mr. Burnitt having being ruled invalid;
• purported to elect Mr. Davy as Secretary (after inviting Mr. Kristian Kollmorgen to withdraw his nomination) on the basis that there was no other nomination;
• purported to elect Messrs Kollmorgen, Crisci and Faggotter to the committee on the basis that all other nominations were invalid.;
  

The Chairperson was advised by persons present and entitled to vote that the decision was not accepted;

No ballot was conducted and no tally of votes was undertaken.

There were sufficient persons present and entitled to vote at the meeting to reverse by ordinary resolution the ruling of the Chairman.

Had a ballot been conducted and votes tallied, the following persons would have been elected to the body corporate committee:

• Chairman – Peter Burnitt
• Secretary – Kristian Kollmorgen or Ron Davy
• Treasurer – Scott Drinkwater
• Committee – Keiley Burnitt, Jana Burnitt, Clem Crisci, & Des Faggotter.
  

On 21 April 2009, arrangements were made by Burnitt Investments Pty. Ltd. to have Mr. Davy, as acting Chairman & Secretary, sign the consent to the making of the application to the Brisbane City Council by Burnitt Investments Pty. Ltd. However on 22 April 2009, Mr. Davy on his own behalf and the committee (as said to be constituted in paragraph 17) refused to sign the consent or otherwise put into effect motion 20 passed by the body corporate in general meeting for the reasons referred to in the attached email dated 22 April 2009.

The applicant states that the nominations for the committee are those nominations which had been made for the purposes of the annual general meeting to be held on 1 August 2008. Given the irregularities in the conduct of that meeting, a dispute resolution application was made to this office. Submissions were called for and at no time was a submission advanced by the body corporate or any owner that nominations for committee membership were invalid for the reasons purportedly provided by Mr. Davy or otherwise. The adjudicator ruled that the nominations made prior to the annual general meeting on 1 August 2008 were effective.

By circulating on 2 separate occasions the ballot paper to members of the body corporate for consideration of election of the candidates to the nominated positions, as outlined in the ballot paper, the secretary of the body corporate has confirmed that the list of candidates is properly nominated pursuant to section 23 of the Regulations.

Members of the body corporate as a whole have a right to vote and have their votes tallied and to otherwise express their desire to appoint persons to the committee of the body corporate in general meeting.

Mr Davy’s refusal to:

• accept nominations properly made;
• conduct a ballot of votes properly delivered; and
• advise in a timely way and in particular before the adjudicator, that despite the adjudicator ordering that all nominations made are effective for the upcoming AGM, that he would rule as invalid those nominations which he did not want;

is a denial of natural justice and procedural fairness to all owners of lots in this scheme and those who have been nominated as candidates.

Submissions have previously been made as to Mr Davy’s impartiality and conduct at committee meetings, his refusal to accept votes and to allow motions to be put to a meeting.

Mr Davy had no authority under the Act or Accommodation Module regulation to rule the nominations for committee membership out of order where nominations-

• have been made and accepted pursuant to sections 18 to 23 inclusive of the regulations;
• ordered to be put to the vote;
• circulated to all lot owners; and
• in respect of which ballots had been delivered;

in circumstances where:

• neither Mr Davy nor the Body Corporate raised any objection to the nominations having had an opportunity to do so when the nominations were first made;
• selected votes were taken in respect of the nominations (now ruled invalid when the numbers were against him) at the meeting held on 1 August 2008 and there being no objection taken nor ruling of invalidity made at that time;
• the body corporate and Mr. Davy has previously had the opportunity to make submissions to the adjudicator in respect of the conduct of the meeting held on 1 August 2008 including candidates nominated for positions to the body corporate committee and has failed to do so.
  

To the extent that any objection could have been taken at the AGM held on 16 April 2009 (which is not admitted) the body corporate and Mr Davy is estopped from now doing so for the reasons stated above.

No basis was advanced by Mr Davy for his ruling that Keilly Burnitt, Jana Burnitt, and/ or Scott Drinkwater were associated with the Letting Agent, and in fact they are not so associated in any manner whatsoever.

The only basis advanced by Mr. Davy that Mr. Burnitt was associated with the letting agent was a nomination of him by the letting agent for the purposes of one meeting more than 4 years ago, such nomination having been withdrawn thereafter and notified to the body corporate and in fact he is not currently associated with the letting agent within the meaning of the Act in any manner whatsoever. Mr Burnitt does not act on the instructions of the letting agent and a single nomination for a single meeting does not constitute “accustomed” as the term clearly imports a notion of behavior over time wherein a “custom” of acting at another’s direction comes into existence.

In any event if there wad such an association, the nomination should have been accepted as chairman or committee member albeit on the basis that no voting rights attach to that appointment (section 13 of the Regulation);

The conduct of Mr Davy and of the committee evidences a clear and deliberate bias against Mr Burnitt and the committee, as purportedly currently constituted, is incapable of performing its statutory obligations and otherwise putting into effect resolutions of the body corporate properly made. The applicant also believes that Mr Davy is incapable of acting in an unbiased fashion and in the best interests of the body corporate as a whole.

Submissions

In accordance with section 243 of the Act, a copy of the application was provided to the chairperson for distribution to all owners (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application.

Transmetro Corporation Ltd., an owner and service provider, made the following submissions:

• Transmetro received no prior warning from Mr. Davy that he was minded to make the ruling against the candidature of Mr. Burnitt or other lot owners;
• The applicant and the persons related to it own a substantial number of lots in the scheme;
• Transmetro is the lessee under long term leases of all those lots excepting lot 29 which the applicant occupies for a restaurant and bar business;
• There is nothing arising from the commercial relationship that involves any regular liaison with the applicant or which might put Transmetro in a position where it can or might reasonably be expected to influence Mr. Burnitt in the discharge of such duties on the committee that he or others might have occupied if he had been elected to any positions for which he or they nominated;
  

The owners of a particular lot made submissions that included the following:

• Disputes between Mr Davy & the applicant have been continuing over a number of years;
• They believe that the application should be dismissed;
• As interstate owners they want to know that their investment is safe;
• The applicant has encroached upon common property while making improvements to certain ground floor lots;
• They are concerned about a request that the committee sign a consent authorising the grant of development approval for Mr. Burnitt’s building work;
• “Legal proceedings are currently in the Supreme Court”;
• They believe that Mr. Burnitt and Transmetro are working together;
• Mr Davy ruled that the parties are associated with Transmetro.
  

Submissions by another lot owner included the following:

• Mr Burnitt has admitted to encroaching upon common property and has offered to pay compensation;
• In 2005 “Transmetro gave Burnitt Powers of Attorney”;
• If Mr Davy has broken any rules, he believes that he was endeavouring to protect the rights of all unit owners “who under lease Section 4.5(a) have no voting rights;
• He believes “it would be a serious miscarriage of justice for the Commissioner to direct that consent to be given to any of Burnitt’s Development application until he has paid monies offered”;
• He does not believe that the compensation payment of $1.2 million should be paid into the sinking fund for the benefit of all owners” when most repairs and replacements are the responsibility of Transmetro because clauses 3.2 and 3.3 state that the lessee must “regularly repair, replace and redecorate”.
  

Submissions made by the acting body corporate Chairperson, Mr. Davy, included the following:

• The chairperson declared the appointment of Mr Burnitt invalid on the basis that he is “the delegate/ associate of the caretaking and letting agent”;
• There is business arrangement between Transmetro which carries on the letting business, and the tavern carried on by Mr. Burnitt;
• Burnitt occupies lots 29 & 30 which are leased to Transmetro;
• Mr Burnitt’s 2 daughters were regarded as associates because they believe that Burnitt Investments Pty. Ltd. control these lots ;
• “The same situation and logic were applied to the nomination by Scott Drinkwater as nominee for Novaheat Pty. Ltd. which is a Peter Burnitt company”;
• The motion by Burnitt Investments is not valid because it seeks to get aroung the dilemma regarding encroachment upon common property which is currently before the Supreme Court;
• Burnitt and Transmetro have common interests and Transmetro has breached the Caretaking and Letting Agreement by working and co-operating with Burnitt;
• Motion 20 cannot be voted upon because the body corporate never voted to approve Burnitt’s work.
  

Numerous lot owners signed a pro-forma document which contained the following submissions:

• In 2004 Mr Burnitt wrote to lot owners asking for their support for his planned renovations and refurbishments but did not obtain this support;
• In early 2005 Burnitt used a Power of Attorney in an attempt to (1) have motions passed which would allow him to go ahead with his plans ; and (2) to sack the committee Chaired by Mr Davy. However, this attempt failed because Mr Davy ruled that he was an associate of the letting agent, Transmetro;
• It is alleged that Burnitt and Transmetro have the majority of votes, that they use their voting power to keep rents low and that they also intend to use their voting power to spend all the sinking fund monies;
• Although Burnitt has lodged an application with the Supreme court regarding the encroachment on common property, it is claimed that “he seeks to circumvent his own application in the Supreme court by demanding that the body corporate apply to the Brisbane City Council for the necessary approvals”;
• They believe that although lots are owned by members of Mr. Burnitt’s family, the lots “are effectively controlled by Mr. Burnitt”.
  

The applicant made the following submissions In response:

• Many of the submissions are irrelevant to the issues at hand;
• Burnitt Investments Pty. Ltd. is completely independent of Transmetro Corporation Pty. Ltd.
• A nomination by the letting agent for the purposes of a single meeting more than 4 years ago , which nomination was thereafter withdrawn, does not constitute being “accustomed”;
• In any event, in that instance the letting agent delegated the authority to vote to Burnitt Investments Pty. Ltd. whereas section 11(2) contemplates the letting agent exercising that voting control;
• Burnitt Investments Pty. Ltd. does not act under the direction or control of the letting agent;
• For the purposes of the Act, a person is “associated with someone else” if there is a relationship of that type or which can be traced between them through another person or persons as prescribed in section 309(2).
• The submissions do not identify any such relationship between Burnitt and Transmetro and there is no such relationship between Keilly Burnitt and Jana Burnitt are daughters of Peter Burnitt does not mean they are an associate of the letting agent;
• Similarly, the fact that Mr Drinkwater may vote in a similar manner to Mr Burnitt does not make him an associate of the letting agent;
• The fact that supporters of Mr Davy and Skafola Pty. Ltd. may vote consistently wit or as directed by Mr Davy and Skafola Pty. Ltd does not mean that they are an associate of the letting agent;
• The istence of a lease between an owner and letting agent does not make the owner an associate of the letting agent – section 11(2)(b) accommodation Module;
• The validity of motion 20 was previously upheld in an order made on 14 November 2008;
• The motion is not unlawful or unenforceable as the motion merely seeks consent of the body corporate to lodging a town planning application and the consent is not determinative of any issue in respect of the application;
• The passing of the motion and the lodging of the application with the Brisbane City Council does not circumvent the application to the Supreme Court or the proceedings for compensation before the Supreme Court. These proceedings are continuing and further directions were made in respect of the same on 11 June 2009.
  

Jurisdiction

Section 227(1) of the Act defines a dispute, and lists the parties between whom a dispute might arise. Section 227(2) provides that an application by a person mentioned in subsection 1(a) to (h) for a declaratory order about the operation of this Act is also a dispute even if there is no affected person for the application.

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)).

Determination

The applicant is seeking the following orders:

A declaration that:

• The purported election of the committee of the Body Corporate for the tower mill Inn CTS 1918 (the body corporate) of 16 April 2009 be declared void.
  

Orders that:

• The nominations for committee of Peter Raymond Burnitt, Keilly Burnitt, Jana Burnitt, and Scott Drinkwater, notified to all members of the Body Corporate be permitted in addition to all other nominations;
• All ballots delivered to the general meeting of the body corporate or otherwise for election of the body corporate committee held on 16 April 2009 be tallied by the Adjudicator or as ordered;
• The results of the ballot so held be recorded in the minutes of the meeting;
• Ronald Dean Davy as acting Chairman and acting Secretary execute the form of consent of the body corporate attached hereinto and marked “Body Corporate Consent” and affix the seal of the body corporate for Tower Mill Inn CTS 1918 within 7 days which execution(with or without body corporate seal) is declared effective pursuant to section 138 of the Body Corporate and Community Management Act 1997 failing which Peter Raymond Burnitt is authorised execute the Body Corporate Consent the execution of which by Peter Raymond Burnitt shall have the same effect as if duly executed pursuant to Section 138 of the Body Corporate and Community Management (Accommodation Module) Regulation (as amended)
  

As I have previously pointed out, there is a lengthy history of conflict between the various lot owners in this scheme giving rise to some 20 dispute resolution applications to this Office in recent years. However, despite the multiplicity of applications, there has been little progress in the resolution of the underlying tensions between the parties. The parties should be aware that if this level of hostility between lot owners continues, it may become necessary to have a professional administrator appointed to protect the interest of the scheme as a whole.

This latest dispute relates to the following:

• legality of the process adopted in the election of the Committee at the adjourned AGM;
• the refusal by Mr. Davy and the committee to execute the Body Corporate Consent where the relevant motion requiring same to be executed has been passed.
  

The factual circumstances forming the background to this application are not disputed by the respondent, and for the purposes of my decision are summarised below.

On 14 November 2008 I made certain orders in response to dispute resolution application 653/2008. These included the following declaratory orders:

• that resolutions made on motions 1 to 7 at the AGM held on 1 August 2008 were void;
• that the purported election of committee members 1 August 2008 was void;
• that motions 10 to 20 were wrongly ruled out of order by the Chairman.
  

I also ordered that the AGM should be re-held within 2 months of the date of the order and in order to avoid further delay and expense, ordered that for the purpose of electing committee members, nominations made prior to the AGM on 1 August 2008 would remain effective.

However the AGM was not convened as directed and did not occur until 3.30pm on 16 April 2009 at level 4, 49 Sherwood Road, Toowong. At that meeting, motions 1 to 20 inclusive were voted upon, votes tallied and it is not disputed that the results of voting were as follows:

Motion No.	Yes	No
1	51	26
2	34	51
3	32	53
4	84
5	84
6	84
7	84
8	32	54
9	55	31
10	54	31
11 - Body corporate insurance and other body corporate outlays.	54	31
12 - paver and wire fence repairs	55	30
13 – waterproofing podium level to prevent leakage into basement	54	31
14 – building and maintenance audit	55	30
15.-. balustrade, health & safety & lift audit	55	30
16 – reimbursement of Transmetro for plumbing & electrical work	53	31
17 - reimbursement of Transmetro for emergency lighting	54	31
18 – committee membership by Mr Davy	54	31
19 - committee membership by Mr Davy	54	31
20 – Consent to applications to BCC by Burnitt Investments Pty. ltd	54	31

Given that Motion 20 (regarding body corporate consent to the making of an application to the Brisbane City Council by Burnitt Investments Pty. Ltd.) was carried, the question for me to consider is whether there is any reason why representatives of the body corporate should not be required the execute the consent in the terms of the motion passed.

A number of lot owners have expressed the view that the purpose of this motion is to circumvent an application by Burnitt to the Supreme Court of Queensland by demanding that the body corporate apply to the Brisbane City Council for the necessary approvals. However, I do not believe that this is case. Rather motion 20 seeks consent of the body corporate to lodging a town planning application regarding the use of the applicant’s lot and certain common property as a hotel and restaurant. This issue is separate and distinct from the issues before the Supreme Court i.e. whether the area of common property encroached upon by Burnitt should be transferred to Burnitt, and if this is answered in the affirmative, the quantum of compensation that should be paid to the body corporate.

Given the result of the voting upon this motion, I believe that it is appropriate for me to order that

The acting Chairman and acting Secretary execute the form of consent of the body corporate attached hereinto and marked “Body Corporate Consent” and affix the seal of the body corporate for Tower Mill Inn CTS 1918 which execution(with or without body corporate seal) is declared effective pursuant to section 138 of the Body Corporate and Community Management Act 1997 failing which Peter Raymond Burnitt is authorised execute the Body Corporate Consent the execution of which by Peter Raymond Burnitt shall have the same effect as if duly executed pursuant to Section 138 of the Body Corporate and Community Management (Accommodation Module) Regulation (as amended)

The next matter for my consideration is whether the purported election of the Body Corporate committee on 16 April 2009 should be declared void because the nominations for committee by Peter Burnitt, Keilly Burnitt, Jana Burnitt, and Scott Drinkwater were wrongly rejected by Mr Davy acting as Chairman.

Owners opposed to the application, including owners associated with Mr. Davy argued that all of the above nominees are “associates” of Transmetro Corporation Pty. Ltd., the caretaking and letting agent and are therefore ineligible to be committee members.

Section 11 of the Body Corporate and Community Management (Accommodation Module) Regulation provides as follows:

11 Eligibility to be a voting member [SM, s 10]

(1) A person is eligible to be a voting member of the committee if the person is an individual nominated for membership of the committee by a member of the body corporate (the nominating entity) and is also--
(a) a member of the body corporate; or
(b) a person of a following category--
(i) if the nominating entity is an individual--
(A) a member of the individual's family; or
(B) a person acting under the authority of a power of attorney given by the individual;
(ii) if the nominating entity is a corporation--a director, secretary or other nominee of the corporation;
(iii) if the nominating entity is the body corporate for a subsidiary scheme in a layered arrangement of community titles schemes--a representative of the subsidiary scheme.

(2) However, a person who is otherwise eligible under subsection (1) to be a voting member of the committee is ineligible to be a voting member of the committee if the person is--
(a) a body corporate manager, service contractor or letting agent; or
(b) an associate of a body corporate manager, service contractor or letting agent (other than an owner of a lot who is the associate of a letting agent merely because the letting agent, in conducting the agent's letting agent business, acts for the owner); or
(c) a person, other than a letting agent for the scheme, who conducts a letting agent business for the scheme; or
(d) a person who is a member of the body corporate who owes a body corporate debt in relation to a lot or lots owned by the person at the time voting members are chosen, or a person nominated by that person.

(3) In this section--

family, of a nominating entity who is an individual, means the following persons--
(a) the individual's spouse;
(b) each of the children of the individual or the individual's spouse who is 18 years or more, including a step child or an adopted child;
(c) each of the individual's parents, including a step parent;
(d) a brother or sister of the individual.

The term “Associate” is defined in section 309 of the Act as follows:

Associates

(1) For this Act, a person is associated with someone else if--
(a) a relationship of a type to which this section applies exists between them; or
(b) a series of relationships of a type to which this section applies can be traced between them through another person or other persons.

(2) This section applies to relationships of the following types--
(a) marriage or de facto relationship;
(b) the relationship of ascendant and descendant (including the relationship of parent and child) or the relationship of persons who have a parent or grandparent in common;
(c) partnership;
(d) the relationship of employer and employee;
(e) a fiduciary relationship;
(f) the relationship of persons, 1 of whom is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the other;
(g) the relationship of a corporation and executive officer of the corporation;
(h) the relationship of a corporation and a person who is in a position to control or substantially influence the corporation's conduct.

(3) Despite subsection (2)(e) and (f), the owner of a lot in a community titles scheme and a letting agent for the scheme are not associated merely because of their relationship as owner and letting agent.

(4) In subsection (2)--

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation's management, whether or not the person is a director or the person's position is given the name of executive officer.

On behalf of the body corporate committee, Mr Davy has suggested that

• Burnitt is “the delegate/ associate of the caretaking and letting agent”;
• There is business arrangement between Transmetro which carries on the letting business, and the tavern carried on by Mr. Burnitt;
• Burnitt occupies lots 29 & 30 which are leased to Transmetro;
• Mr Burnitt’s 2 daughters were regarded as associates because he believes that Burnitt Investments Pty. Ltd. control these lots ; and
• Scott Drinkwater is nominee for Novaheat Pty. Ltd. which is a Peter Burnitt company, and is therefore an associate.
  

However I do not believe that Peter Burnitt, Scott Drinkwater, Keiley Burnitt or Jana Burnitt are “associates” of the Caretaking Service Contractor and Letting Agent for the purposes of section 11(2) of the Accommodation Module. The fact that there is a commercial lease arrangement in place between Mr. Burnitt and/or his companies, and Transmetro, does not make him an “associate”. To be an “associate” as defined, it would be necessary to establish that there is for example, a partnership between the parties, a fiduciary relationship or that Burnitt Investments Pty. Ltd. is subject to the direction and control of Transmetro.

The next matter that I turn to is the proper result of voting for committee membership. The applicant states that ballot papers were delivered to the secretary of the body corporate prior to the commencement of the meeting and prior to the commencement of that part of the meeting relating to the appointment of the committee on 16 April 2009.

The applicant states that if a ballot had been conducted and votes tallied, the following persons would have been elected to the body corporate committee:

• Chairman – Peter Burnitt
• Secretary – Kristian Kollmorgen or Ron Davy
• Treasurer – Scott Drinkwater
• Committee – Keiley Burnitt, Jana Burnitt, Clem Crisci, & Des Faggotter.
  

This result has not been disputed by the body corporate committee or the acting Chairperson.

Accordingly, I propose to make the following orders:

• That the purported election of the committee of the Body Corporate for the Tower Mill Inn CTS 1918 (the body corporate) of 16 April 2009 be declared void.
• That the nominations for committee by Peter Burnitt, Keilly Burnitt, Jana Burnitt, and Scott Drinkwater, were valid notified to all members of the Body Corporate be permitted in addition to all other nominations;
• All ballots delivered to the general meeting of the body corporate or otherwise for election of the body corporate committee held on 16 April 2009 be tallied by the current Acting Chairman;
• The results of the ballot so held be recorded in the minutes of the meeting;
• Given that the majority of lot owners voted in favour of motion 20, the acting Chairman and Secretary is to execute the form of consent of the body corporate attached hereinto and marked “Body Corporate Consent” and affix the seal of the body corporate for Tower Mill Inn CTS 1918 within 7 daysof the date of this order, which execution (with or without body corporate seal) is declared effective pursuant to section 138 of the Body Corporate and Community Management Act 1997, failing which Peter Raymond Burnitt is authorised to execute the Body Corporate Consent, the execution of which by Peter Raymond Burnitt shall have the same effect as if duly executed pursuant to Section 138 of the Body Corporate and Community Management (Accommodation Module) Regulation (as amended)