Rimini Court [2010] QBCCMCmr 37 (1 February 2010)

Last Updated: 23 March 2010

REFERENCE: 0086-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	994
Name of Scheme:	Rimini Court
Address of Scheme:	11 Balaclava Road EARLVILLE QLD 4870

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

Leo Gradinger, the Occupier(s) of lot 8

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0086-2010

“Rimini Court” CTS 994

Application

Rimini Court Community Titles Scheme (Rimini Court) is an 8 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). Leo Gradinger, occupier of lot 8 (applicant) has made this application against the body corporate for Rimini Court (respondent).

Decision

The dispute is about a general meeting to be held on 2 February 2010. The applicant has provided a copy of a proxy form signed by Elizabeth Kukacka, the owner of lot 8. This form authorises the applicant to vote on behalf of the owner of lot 8 at all general meetings held before 30 June 2010.

The applicant has relied upon this authorisation to submit, on behalf of lot 8, a nomination for committee membership and a motion for consideration at the general meeting. A submission from Christine White, an owner appointed to call the general meeting, is to the effect that she does not believe that the applicant is an owner of lot 8. Therefore, it is submitted that the applicant cannot submit motions or committee nominations for the general meeting even if the applicant is eligible to vote at the general meeting or be elected as a committee member.

The present dispute relates to the right to submit motions and committee nominations for a general meeting of the body corporate for Rimini Court. The legal right to submit motions and committee nominations applies only to owners of lots in the scheme and not to occupiers of lots (Standard Module 17, 69). An owner could appoint an occupier to act as their proxy at a general meeting (Standard Module, 107). However, the appointment of a proxy applies only to actions at the general meeting itself rather than the submission of motions or nominations for the meeting. Further, the legislation limits the use of the proxy even in relation to voting at a general meeting. A proxy vote cannot be exercised for certain matters including for a ballot for the election of committee members or on a motion to appoint a body corporate manager (Standard Module 109(3)(c), 109(3)(f)).

The owner of the lot may well wish the applicant to act on her behalf in the exercise of rights under the Act resulting from her ownership of a lot in Rimini Court. However, as a matter of law, it would be necessary for the owner to provide the applicant with a power of attorney in this respect. The mere completion of a proxy form provides only limited rights to vote at a general meeting on behalf of the owner and is insufficient in this respect.

Based on the material provided, the applicant is a proxy but not an attorney of the owner. Therefore, the applicant does not even have legal standing to bring the present application as he is challenging a meeting by which owners make decisions relating to the scheme and there is no evidence that these decisions will affect the applicant in his legal capacity as an occupier (Act 226, 227).

Order

For these reasons, the application is dismissed. If the owner of lot 8 wishes to have the applicant act on her behalf in the exercise of rights under the Act resulting from her ownership of a lot in Rimini Court then it would seem appropriate that she complete a power of attorney in favour of the applicant in this respect.[1]

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[1] Refer to http://www.justice.qld.gov.au/472.htm and http://www.justice.qld.gov.au/2254.htm in relation to power of attorney forms.