Lakeview [2011] QBCCMCmr 369 (25 August 2011)

Last Updated: 15 September 2011

REFEREE’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Lakeview [2011] QBCCMCmr 369
PARTIES:	Robin Waning (applicant) The Body Corporate (respondent)
PLAN:	GTP 107127
JURISDICTION:	Section 77 of the Building Units and Group Titles Act 1980 (Qld) (BUGTA).
APPLICATION NO:	0272-2011
DECISION DATE:	25 August 2011
DECISION OF:	D Toohey, Referee
CATCHWORDS:	MISCELLANEOUS – appointment of nominee for principal body corporate meetings. BUGTA, s 46. IRDA, s140.

ORDERS MADE:

I hereby declare that the committee resolutions of 11 March 2011 and 18 March 2011 were void and of no effect. I further declare that the nominee appointed by the body corporate for principal body corporate meetings must represent the body corporate in way the body corporate directs, whether by committee resolution or by resolution passed at a general meeting. I further declare that any cancellation or replacement of the nominee’s appointment by the body corporate may only be by resolution passed at a general meeting.

REASONS FOR DECISION
Introduction

[1] The Proprietors – Lakeview GTP 107127 (LBC) is a residential body corporate under the Building Units and Group Titles Act 1980 (BUGTA). LBC is a member of the Principal Body Corporate for Royal Pines Resort (PBC). This PBC is established under the under the Integrated Resort Development Act 1987 (IRDA) as part of the Royal Pines Resort.
[2] Under IRDA, each body corporate that is a member of the PBC must elect a nominee to vote for their body corporate at PBC meetings.
[3] This was originally a dispute about whether the committee acted properly in seeking to replace the applicant as nominee. There is no longer any dispute about this because owners have subsequently voted to appoint the applicant. However, the applicant still seeks orders about the processes of appointment and the ability of the committee to direct the way the nominee must vote.

Analysis

Appointment of a nominee

[4] The process of a residential body corporate appointing a nominee to vote on its behalf at meetings of the principal body corporate is set out in section 140 of IRDA. Subsection 140(2) says:

A subsidiary body corporate of the principal body corporate—

(a) must appoint a nominee at its annual general meeting; and

(b) otherwise, may appoint a nominee from time to time.

[5] The initial appointment of a nominee must therefore be by vote of owners at an annual general meeting. The committee could not subsequently go against this decision by replacing the nominee appointed at the annual general meeting with a different nominee. However, if the appointed nominee resigned then the committee could ordinarily make a decision on behalf the body corporate to appoint a new nominee. This is because a decision of a committee, on any matter other than restricted matters, is a decision of the body corporate (BUGTA, 46).

Directing the nominee to vote

[6] Section 140(6) of IRDA says:

A nominee appointed by a subsidiary body corporate must represent the subsidiary body corporate—

(a) in the way the subsidiary body corporate directs; and

(b) subject to subparagraph (a), in a way that is in the best interests of the subsidiary body corporate.

[7] The body corporate can direct its nominee to act by way of a general meeting resolution or a committee resolution, provided the resolution is validly passed. This is because a decision of a committee, on any matter other than restricted matters, is a decision of the body corporate (BUGTA, 46).
[8] By voting outside committee meeting of 11 March 2011 and 18 March 2011 the committee sought to direct its nominee how to vote and then remove its nominee after its nominee refused to comply with this direction.
[9] It is common ground that the nominee was not properly appointed. It also seems more likely than not that the committee failed to put a proper notice of the proposed vote on the noticeboard, especially as no one has provided a copy of any such notice (BCCMA, Schedule 4 – Item 6). I am prepared to declare these resolutions were void and of no effect.

Other declarations

[10] Based on the above, I will also make the declaration sought that any cancellation or replacement of the nominee’s appointment by the body corporate may only be by resolution passed at a general meeting.
[11] The applicant also sought a declaration that only the body corporate in general meeting can direct the nominee how to vote. However, a valid committee resolution is a decision of the body corporate. I will therefore declare that the nominee appointed by the body corporate for principal body corporate meetings must represent the body corporate in way the body corporate directs, whether by committee resolution or by resolution passed at a general meeting.

Conclusion

[12] The main issue in dispute has been overtaken by a subsequent decision by owners to appoint the applicant as the body corporate’s nominee for principal body corporate meetings.
[13] However, it is appropriate in the circumstances to make the above declarations.