Sunnycove Ipswich [2010] QBCCMCmr 55 (10 February 2010)

Last Updated: 23 March 2010

REFERENCE: 0088-2010

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	34652
Name of Scheme:	Sunnycove Ipswich
Address of Scheme:	56A Moores Pocket Road MOORES POCKET QLD 4305

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

Lynette Ashton-Stewart, the Owner of lot 31

I hereby declare that the resolutions upon motions 9 and 13, purportedly passed at the last AGM on 19 January 2010 are invalid and of no effect. I hereby order that the body corporate is not to enter into a new agreement with a body corporate manager until such time as proper approval has been obtained by way of a valid resolution of the body corporate in general meeting.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0088-2010

“Sunnycove Ipswich” CTS 34652

The scheme

Sunnycove Ipswich is a community titles scheme comprising 33 lots and common property. The scheme was established upon registration of a building units plan (now described as a building format plan) and is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).

Application

This application is made by Ms. Lynette Ashton-Stewart, the Owner of lot 31, against the Body Corporate and seeks the following interim order:

To prevent the Chairperson from signing the Body Corporate Management Agreement with Archers Body Corporate Management for another 12 months.

The final outcomes sought by the applicant are as follows:

1. That motions 9 & 13 be ruled out of order and an EGM be called to reconsider the motion as a motion with alternatives to appoint a Body corporate Manager;
2. To declare invalid the secret ballot for the election of the Chairperson and to conduct another secret ballot with an independent returning officer for the election of the chairperson.
   

In support of the application the applicant makes the following submissions:

• At the last AGM held on 19 January 2010, motions 9 & 13 were considered as two motions rather than as motions with alternatives in contravention of section 70 of the Accommodation Module regulation;
• The body corporate manager performed the role of chairperson without authority of the body corporate;
• The body corporate manager opened the meeting and advised of votes received by mail and then advised the meeting that the chairman and secretary would vote from the floor by telephone as they had not submitted written voting papers;
• She advised the body corporate manager that motions 9 & 13 should be ruled out of order but she refused to do so;
• The body corporate manager then advised the meeting that they should vote on motion 13 first and motion 9 if required despite the protests of the applicant;
• The result of voting on motion 13 was split 5 votes yes and 5 votes no;
• They body corporate manager then read out motion 9 to reappoint Archers body corporate management and the result of the vote was 6 yes votes and 4 no votes and she declared the motion carried;
• The applicant believes that the body corporate has contravened the following sections of the Accommodation Module:- Section 70 which deals with Motions with Alternatives; section 78 dealing with Chairmanship of Meetings; section 79 “Power of person Chairing the Meeting to Rule Motion out of Order” and “Voting by Telephone”.
• The appointment of the Chairperson was invalid because Archers were not properly appointed as returning officers and she believes that 2 votes may have been improperly excluded on the grounds that the owner was “unfinancial”.
  

Investigation

In accordance with the investigative powers of an adjudicator in section 271 of the Act, I invited submissions from the body corporate committee and received from the body corporate manager a communication which included the following:

• The AGM held on 19 January contained 2 motions for the appointment of a body corporate manager. One of these motions was submitted by the committee and the other motion was submitted by an owner;
• As discussed at the meeting, the appointment of the body corporate manager was not dealt with as a motion with alternatives;
• Mr. Galway, the Chairman asked for voting numbers on both motions in order to ascertain what the voting would have been. Archers have subsequently acknowledged that this involved a procedural error and organised an EGM at no cost to the body corporate;
• Mr. Galway, who was in attendance by teleconference, chaired the meeting with assistance from Ms. Scanlon from Archers;
• The ballot was not a secret ballot but an open ballot and an independent staff member from Archers attended to open envelopes and count the votes;
• The outcomes sought by the applicant have already been implemented by calling an EGM for and issuing a Notice of Meeting which calls for the appointment of a body corporate manager by way of a motion with alternatives;
  

The applicant has received a copy of the Notice of meeting and has raised a number of matters including the following:

• She does not believe that the meeting has been called in accordance with the Act because there is no evidence that it was approved at a committee meeting or that the EGM was requisitioned;
• The minutes of the last AGM contain a number of inaccuracies; and
• She is not satisfied with the performance of the current body corporate manager.
  

Jurisdiction

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me Section 276(1) of the Act provides that 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. An order
may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

Section 279(1) provides that 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”. It is therefore necessary to determine whether, because of the nature or urgency of the circumstances, an interim order is in fact necessary or appropriate. The examples under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the Applicant does need to establish that the circumstances of the application warrant the making of an interim order.

Determination

The applicant has correctly pointed out that the purported appointment of Archers Body Corporate Management as body corporate manager on 19 January 2009 was invalid due to non-compliance with section 70 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 which provides as follows:

70 Motion with alternatives
(1) This section applies if 2 or more motions (the original motions) proposing alternative ways of dealing with the same issue are submitted, under section 67, as motions for consideration at a general meeting of the body corporate.

Example—
The secretary of the body corporate receives motions from 3 owners of lots proposing the engagement of a person as a body corporate manager. Each motion proposes a different person.
(2) A voting paper for the general meeting must—
(a) list as alternatives under 1 motion submitted by the committee (a motion with alternatives), the substance of each of the original motions; and
(b) show, after the motion and each alternative listed under it, a blank space for voting purposes.
(3) A person who is a voter for the general meeting may vote either—
(a) for the motion, by voting for the motion and for 1 of the alternatives listed under the motion; or
(b) against the motion.
(4) If the required resolution is passed for the motion—
(a) the alternative with the most votes is the body corporate’s decision; or
(b) if 2 or more alternatives (the qualifying alternatives) receive an equal highest number of votes—the qualifying alternative that is the body corporate’s decision must be decided by chance in the way the meeting decides.
(5) If more than 1 motion about the same issue is listed on the agenda, or stated in a voting paper, for the meeting, all motions about the issue are void.

The body corporate manager has since recognised that motions 9 and 13 are invalid and have called an extraordinary general meeting for 18 February 2010. The body corporate manager therefore submits, on behalf of the body corporate, that outcomes sought by the applicant have already been implemented by calling an EGM and issue of a Notice of Meeting which calls for the appointment of a body corporate manager by way of a motion with alternatives.

At this point in time I am considering the application for the following interim order:
To prevent the Chairperson from signing the Body Corporate Management Agreement with Archers Body Corporate Management for another 12 months.
Having regard to the failure by the body corporate to comply with section 70 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 , I propose to make the following orders:

• That the resolutions upon motions 9 and 13, purportedly passed at the last AGM are invalid and of no effect; and
• The body corporate is not to enter into a new agreement with a body corporate manager until such time as proper approval has been obtained by way of a valid resolution of the body corporate in general meeting.
  

Obviously, another general meeting will need to be held for the purposes of appointing a body corporate manager. In this regard I would point out to the body corporate that the Extraordinary General Meeting needs to be properly authorised in accordance with section 64 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008.

These are interim orders which shall continue to have effect until revoked or until a final order is made in respect of the application. The matter is now referred back to the Commissioner for consideration as to what further action should be taken in respect of this application. This may include seeking of further submissions and affording the applicant a right of reply to submissions.