Equinox Sun Resort [2011] QBCCMCmr 11 (11 January 2011)

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

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Equinox Sun Resort [2011] QBCCMCmr 11 (11 January 2011)

Last Updated: 21 February 2011

REFERENCE: 0906-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11503
Name of Scheme:	Equinox Sun Resort
Address of Scheme:	3458 Main Beach Parade MAIN BEACH QLD 4217

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

Mark Skelton, co-owner of Lot 98

I hereby order and declare that Motion 9 of the annual general meeting held on 28th August 2010 is deemed to have been carried for the reasons set out herein.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0906-2010

“Equinox Sun Resort” CTS 11503

APPLICATION

This is an application dated 28th September 2010 and amended on 22nd October 2010, and again on 3rd November 2010 and 4th November 2010, by Mark Skelton, (the Applicant), co-owner of Lot 98, against the body corporate for Equinox Sun Resort CTS 11503 (the body corporate) for a declaratory order that Motion 9 of the annual general meeting held on 28th August 2010 was carried as there were no dissenting votes; further and/or in the alternative, that Motion 9 was carried as a result of a change of vote by Peter Baker, owner of Lot 95.

JURISDICTION

“Equinox Sun Resort” CTS 11503 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module). There are 102 lots in the scheme created under a Building Unit Plan of subdivision.

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)).

SUBMISSIONS

The Applicant says that the body corporate has had a long-standing dispute with the successive owners of Lot 1. The latest owners are Mr and Mrs Clarke who have consented to enter into an agreement with the body corporate to reconfigure the ground floor, and for the body corporate to transfer certain parts of the common property to Lot 1, and for certain parts of Lot 1 to be transferred to the body corporate as common property.

When this agreement was put to a general meeting of owners on 28th August 2010, the motion required a resolution without dissent. Owner Peter Baker (Mr Baker) originally voted against the motion, but then abstained. Owing to a public holiday, Mr Baker’s “abstain” vote was not received by the time of the general meeting on 28th August 2010, in accordance with “section 87(2) Standard Module”, and the original “No” vote was therefore counted even though Mr Baker had changed his mind.

The Applicant provides a copy of what appears to be a fax from Mr Baker to the body corporate manager sent on 26th August 2010. The fax says that Mr Baker faxed a voting paper on 25th August 2010 but had since decided not to cast a vote on Motions 8 and 9. He sent a replacement voting paper which he attached to the faxed letter. The voting paper is blank in respect of Motions 8 and 9, and signed by Mr Baker

Motion 9 was for the disposal of freehold land to the owner of Lot 1 and the acquisition of other land from the owner of Lot 1 and required a resolution without dissent. The voting tally is recorded as 20 – 1. The Applicant says that Motion 9 should have been carried had Mr Baker’s second voting paper been received as intended.

In accordance with section 243(2)(b) Act, submissions were invited from all lot owners.

There were no submissions made by any owners or the respondent body corporate.

DETERMINATION

The Applicant Mr Skelton is the chairperson of the scheme and I understand from the application and the lack of submissions that there is no objection from the body corporate to the course of action proposed.

Pursuant to section 84(2) Accommodation Module, an owner may cast a written vote if sent by fax to the secretary before the start of the general meeting.

One owner, Mr Baker, voted against Motion 9, but prior to the annual general meeting on 28th August 2010, he decided to negate his vote. Unfortunately, the fax containing his amended voting paper was not noted to the secretary prior to the meeting, although apparently received at the office of the body corporate manager. Mr Baker made no submission in this application, and I am satisfied that he intended not to cast a vote on Motion 9, but advised the body corporate manager of this decision after the deadline for returning voting papers, albeit technically prior to the commencement of the general meeting.

An adjudicator has the power to overrule a vote on a motion which requires a resolution without dissent, if the opposition in the circumstances was unreasonable.[1] I do not propose to enquire into the reason for Mr Baker’s first voting paper dated 25th August 2010 which was the “No” vote which was counted by the body corporate. However, I note that his was the only vote against the proposal in Motion 9, out of a scheme of 102 lots, and it is apparent that all other voters are in favour of the proposal, and that many owners decided simply not to exercise their vote at all.

I therefore grant the order sought and declare that Motion 9 of the annual general meeting of 28th August 2010 is deemed to have been carried, for the reason that the one dissenting voter made it clear prior to the meeting that he wished to negate his dissenting vote and took positive steps to do so.

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[1] Schedule 5, Item 10, Act