Isle of Palms Resort [2012] QBCCMCmr 19 (13 January 2012)

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

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Isle of Palms Resort [2012] QBCCMCmr 19 (13 January 2012)

Last Updated: 20 January 2012

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

CITATION:	Isle of Palms Resort [2012] QBCCMCmr 19
PARTIES:	Mervyn and Betty Ryan (applicants) The Body Corporate for Isle of Palms Resort (respondent)
SCHEME:	Isle of Palms Resort CTS 20860
JURISDICTION:	Sections 227(1) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).
APPLICATION NO:	0026-2012
DECISION DATE:	January 2012
DECISION OF:	R Miskinis, Adjudicator
CATCHWORDS:	Section 19 of the Body Corporate and Community Management (Accommodation Module) Regulation.

INTERIM ORDERS MADE:

I hereby declare that the Committee Nomination Form submitted by the owners of lot 13, dated 29 November 2011, complies with the requirements of section 19 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 and is a valid nomination. I hereby order that the Body Corporate for Isle of Palms Resort is to accept the Committee Nomination Form submitted by the owners of lot 13, dated 29 November.

REASONS FOR DECISION

Introduction

[1] Isle of Palms Resort Community Titles Scheme (Isle of Palms) is a 174 lot scheme regulated by the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation (Accommodation Module).
[2] This application is brought by Mr. & Mrs. Ryan, the owners of lot 13 (applicant) against the body corporate for Isle of Palms (respondent).
[3] The order sought is that their nomination of Ms Susan Dale for election as an ordinary committee member, be accepted by the body corporate.

Jurisdiction

[4] 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.

[5] 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)).

Overview

How the dispute arose

[6] The application is to be resolved under the BCCMA because it is a dispute between the body corporate and the owners of lot 13.
[7] This application is brought by Mr. & Mrs. Ryan who are the owners of lot 13 and seek a declaratory order regarding the validity of a Committee Nomination Form submitted by them with the body corporate manager on 29 November 2009.
[8] There is a degree of urgency regarding this application because the AGM is due to be held in February, and material for this meeting, including voting papers needs to be distributed in the near future.
[9] On 29 November 2011 Mr. & Mrs. Ryan submitted with the body corporate manager a “Committee Nomination Form” in which they stated that they wished to nominate Susan Dale for the position of ordinary member.
[10] Part A of the pro-forma Nomination Form also asks whether the candidate is a lot owner, which can be answered by ticking either a “yes” or “no” box. The nominators failed to tick either of these two boxes, and on this basis, the body corporate manager claims that the nomination is invalid.
[11] The form in question is not an “approved form” as defined by the legislation. In order for a nomination to be valid, it is necessary for the nomination to meet the following requirements of section 19 of the Body Corporate and Community Management (Accommodation Module) Regulation which provides as follows:

Requirements for nominations

(1) For section 17, a nomination must be made by written notice and-

(a) if the nomination is from an owner of a lot nominating the owner - must be signed and dated by the owner; or

(b) if the nomination is from an owner of a lot nominating an individual other than the owner

(i) must be signed and dated by the individual; and

(ii) must be countersigned by the owner, or a person acting under the authority of the owner.

(2) A nomination must contain each of the following details -

(a) the family name and either the first given name or other name or abbreviation by which the nominated person (the candidate) is generally known;

(b) the position or positions the candidate is nominated for;

(c) whether the candidate is an owner of a lot;

(d) if the candidate is not an owner of a lot

(i) the candidate's residential or business address; and

(ii) the category of person mentioned in section 10(1)(b) to which the candidate belongs; and

(iii) the name of the owner of a lot who nominated the candidate;

(e) details of any payment to be made to, or to be sought by, the candidate from the body corporate for the candidate carrying out the duties of a committee member.

[12] Part B of the pro-forma Nomination Form is to be completed if the candidate is not the nominator. In this part of the form, the applicants have provided their residential address and the address of their nominee as required.
[13] Part B further requests that the nominator indicate whether provides that for a nomination to be valid, it is necessary to indicate that the candidate must belong to one of the above categories:

• Another lot owner in the body corporate;
• A member of a lot owners family;
• A person acting under a Power of Attorney;
• A Corporate Nominee;
• A representative of a subsidiary scheme.

[14] It is evident from the completed form that Ms. Dale is being nominated as a member of the lot owners’ family and as the appointee under a power of attorney. It is also evident that Ms. Dale is not being nominated as “another lot owner in the body corporate”. Consequently, I am of the view that notwithstanding that a particular box in part A of the nomination form has not been ticked, the form submitted by Mr & Mrs Ryan on 29 November 2011 meets the requirements of section 19 of the Accommodation Module.

• [15] I therefore believe that it is appropriate to make the following orders:
  • a declaratory order that the nomination is valid; and
  • an order that the body corporate is obliged to accept the nomination.