Runaway Place [2009] QBCCMCmr 399 (15 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0459-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20032
Name of Scheme:	Runaway Place
Address of Scheme:	348 Oxley Drive RUNAWAY BAY QLD 4216

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

Deborah & Hosam Hammad, the Owner(s) of lot 3

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0459-2009

“Runaway Place” CTS 20032

Application

Runaway Place Community Titles Scheme (Runaway Place) is a 16 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Hosam and Deborah Hammad, owners of lot 3 (applicants) seeking orders against the body corporate for Runaway Place (respondent).

Decision

Submissions

The applicants say that the body corporate refused to count two votes submitted for the general meeting on 27 March 2009. It is submitted that both these votes should be counted and the resolution to adopt new by-laws should therefore fail.

The committee says that the two votes in question were received in two separate envelopes within a single larger envelope delivered as registered post from an owner of lot 10. It is submitted that one of the votes was from the owner of lot 10 but that this vote contradicted an earlier vote submitted from the co-owner of lot 10 so no vote for lot 10 could be recorded. The other vote purported to be from the owner of lot 11 and this vote could not be counted because it was delivered by an owner of lot 10 rather than being delivered by the voter.

A submission from the owner of lot 11 is to the effect that two other owners pressured her into voting against the change of by-laws by incorrectly arguing that she would not be able to continue to keep her dog. It is submitted that she did not send this new vote in but that the persons pressuring her took her voting paper away before she had a chance to think.

All owners were given an opportunity to provide written submissions. All submissions are available for inspection by interested persons and it is unnecessary to summarise the other submissions here.

Applicable law

Legislation relevant to the present dispute has provisions to the effect that:

• No vote may be counted for a lot on a motion if there is conflict between the votes of the co-owners of the lot (Standard Module, 87(4)); and
• A voter casts a written vote by completing the voting paper as required and giving the voting paper to the secretary (by hand, by post or by facsimile) before the start of the meeting (Standard Module, 86(2)).

Findings

I am satisfied from the submissions and the minutes of meeting that both co-owners of lot 10 submitted conflicting votes on the motion in question. As a result, neither vote could be counted (Standard Module, 87(4)).

I am further satisfied from the submissions and minutes of meeting that a vote on behalf of lot 11 was delivered by registered post sent by one of the owners of lot 10. The submissions by the owner of lot 11 further satisfy me that she did not authorise the owners of lot 10 to send this vote on her behalf. While it might have been assumed that the owner of lot 11 intended the vote to be sent to the secretary, I am not satisfied that the owner of lot 11 can be said to have given the voting paper to the secretary in the absence of an explicit request that the vote be posted on her behalf. This voting paper of lot 11 therefore could not be counted (Standard Module, 86(2)).[1]

Order

For these reasons, the application is dismissed.

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[1] Note that the wording of the legislation has changed since the decision of Hollis Holdings Pty Ltd v Hanley & Ors [2002] QDC 085. However, the voter is still required to give the voting paper to the secretary by post and it cannot be said that this was done in the absence of the owner of lot 11 requesting or explicitly authorising the owner of lot 10 to post the voting paper on her behalf.