The Mediterranean Towers [2010] QBCCMCmr 179 (20 April 2010)

Number of Scheme:	35038
Name of Scheme:	The Mediterranean Towers
Address of Scheme:	220 The Esplanade BURLEIGH HEADS QLD 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by G & V Brattle International Pty Ltd, the owner of Lot 19

I hereby order that the application for interim and final orders by G & V Brattle International Pty Ltd, the owner of Lot 19 against the body corporate for The Mediterranean Towers community titles scheme 35058 is dismissed because the Body Corporate has accepted the nomination by the Applicant of Graeme Brattle for election to the committee position of treasurer and the position of ordinary member, and it has forwarded information to owners that includes Mr Brattle as a candidate in the ballot for the election of treasurer and in the ballot for the election of ordinary members to the committee.

The scheme
“The Mediterranean Towers” community titles scheme 35038 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).

Application
This application dated 30 March 2010 (amended 13 April) is by G & V Brattle International Pty Ltd, the owner of Lot 19 (Applicant) against the Body Corporate seeking an outcome that its nomination for election of a voting member of the committee be ruled as being in order.

The Applicant provided a copy of the nomination form signed by its directors on 13 January 2010 nominating Graeme Brattle for election to the committee position of treasurer and the position of ordinary member. When making the application, the Applicant stated the committee originally rejected the nomination as incorrect information was recorded as the owners of the Lot even though the correct owner was stated in another part of the document. The Applicant sought an interim order with respect to the committee decision.

On 31 March, CTS Management Pty Ltd (Body Corporate Manager) informed the Commissioner the committee advised the nomination of Mr Brattle would be included in the ballot for the election of the committee. At the request of Mr Brattle, this application was placed on hold pending the issuing of the notice of the annual general meeting.

On 13 April, Mr Brattle informed the Commissioner that that he had received the meeting notice and while the ballot papers include his nomination for election to the position of treasurer, his nomination for election as an ordinary member of the committee had not been recognised.

The Applicant amended the application to seek an interim order that the Body Corporate be instructed to immediately recall all incorrect ballot papers and issue fresh papers that includes Mr Brattle as a candidate for committee membership. The Applicant provided a copy of the distributed ballot papers which included Mr Brattle as a candidate in the ballot for the election of treasurer, but not in the ballot for election as an ordinary member of the committee.

Jurisdiction
In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me even though affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application.

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 13 April I invited submissions from the committee regarding the interim order application.

On 14 April, the Body Corporate Manager made submissions on behalf of the committee that Mr Brattle’s omission from the ballot paper included in the notice of the annual general meeting was due to a clerical error, and this has been rectified as an amended Open Ballot Paper has been circulated to owners. A copy of a 4 page notice dated 14 April was attached to the submission. This notice indicates that due to a proposed committee member being omitted from the original ballot paper, an amended ballot paper is attached, and that owners are requested not to submit the original ballot paper. The amended ballot paper includes Mr Brattle as a candidate in the ballot for the election of treasurer and as a candidate in the election for the position of ordinary committee member.

On 16 April, Mr Brattle indicated he would like a decision to be made on the application.

Determination
Section 276(1) of the Act provides an adjudicator may make an order to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act. Section 279(1) provides an adjudicator may make an interim order “if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates”.

The initial complaint raised a question to be determined about the validity of the nomination of Mr Brattle for election as a member of the committee. The Applicant provided a copy of page 2 of the minutes of the committee meeting dated 29 March 2010 noting: this written nomination “failed to provide correct ownership details and did not include the company owner name where required on line 1 of the form”; the Body Corporate Manager read section 19 of the Accommodation Module; and the committee voted not to approve the nomination.

Nominations must comply with section 19 (s 17(4), Accommodation Module). Section 19 of the Accommodation Module prescribes the requirements for nominations. Relevantly, the nomination must: be made by written notice, and must be signed and dated by the candidate and the person acting under the authority of the owner (s 19(1)(b); and contain the name of the candidate, the position or positions the candidate is nominated for, and particular information if the candidate is not an owner of a lot (s 19(2)).

It is undisputed the nomination of Mr Brattle incorrectly states Graeme and Vivien Brattle as being the owner of Lot 2403. It is also apparent however that the nomination: indicates Mr Brattle is not a lot owner; provides details about the candidate as an individual who is not the lot owner; and is signed by directors of the identified owner of Unit 2403. On balance, if the application had proceeded in its original form I would have considered it appropriate to reach a preliminary view contrary to that expressed by the committee at its meeting dated 29 March with respect to this nomination. In my view, the evidence suggests the nomination complied with the relevant requirements of section 19. The correct ownership details may not have been written in the space provided on the form. However, the correct details were given on the form and there is nothing to suggest a nomination must be given strictly in accordance with any instructions that may be on the form. It is also noted that there did not appear to be any confusion about the particular lot and its ownership given that a unit number rather than a lot number was written on the form. There would appear to have been no doubt that the Applicant was the owner of the identified unit, and that the persons stated as being the owner were in fact the directors of the owner.

The Applicant asked that the application be put on hold after the Body Corporate indicated that the nomination would be accepted. The acceptance of the nomination is the matter asked to be determined by final order. The Applicant wanted to see the documentation included in the notice of the annual general meeting. It turned out that the notice did not include the nomination of Mr Brattle as an ordinary member of the committee. Because of this oversight, the Applicant amended the application. The Applicant now requests an interim order be made that the Body Corporate immediately recall all incorrect ballot papers and issue fresh papers that includes Mr Brattle as a candidate for committee membership. Despite advice the Body Corporate has taken steps of a similar nature to that proposed in the application for an interim order, the Applicant has requested an order be made.

In the circumstances, I am not satisfied an interim order is necessary. The notice dated 14 April corrects the oversight that is of concern to the Applicant and as I have stated, is in a form sought in the application. For this reason, I have dismissed the application for an interim order. I also consider there is no longer a dispute in the terms of the final outcome sought; an outcome is which is closely related to the interim outcome. It is now evident that the Body Corporate has accepted the nomination and that the nominated candidate is listed in the ballot papers for the election of treasurer and ordinary member of the committee. As there is now not a dispute with the Body Corporate about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act, I consider it appropriate to also dismiss the application for a final order.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Mediterranean Towers [2010] QBCCMCmr 179 (20 April 2010)