Body Corporate for Circle on Cavill v Urquhart

[2011] QCATA 125

CITATION: Circle on Cavill CTS 39918 v Urquhart [2011] QCATA 125

PARTIES:	Body Corporate for Circle on Cavill CTS 39918 (Appellant)
v
Paul Urquhart (Respondent)

APPLICATION NUMBER:   APL294-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President
Kenneth Barlow SC, Member

DELIVERED ON: 23 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    Appeal allowed;

2.    Adjudication application reference number 0676-2010 is dismissed.

CATCHWORDS: 

BODY CORPORATE AND COMMUNITY MANAGEMENT – APPEAL FROM ORDER OF ADJUDICATOR – where applicant was not a lot owner but was nominated for committee – whether applicant was a committee member – whether applicant had standing to apply – whether there was a ‘dispute’ – whether Adjudicator ought to have dismissed the application summarily

Body Corporate and Community Management Act 1997 (Qld), ss 227, 238, 270
Body Corporate and Community Management (Accommodation Module) Regulation 2008, s 11

APPEARANCES and REPRESENTATION (if any):

By direction of the Appeal Tribunal, and pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 this matter was heard and determined on the papers.

REASONS FOR DECISION

THE PRESIDENT:

1. In this matter the Appeal Tribunal was comprised of Mr Barlow SC and me.  I have had the advantage of reading his Reasons in draft.  I agree with them, and with the conclusion he has reached and the orders he proposes.

MR BARLOW

1. On 27 August 2010 Paul Urquhart made an application for adjudication under Chapter 6 of the Body Corporate and Community Management Act 1997.  In the application form he stated that he was applying as ‘a committee member’.  The orders which he sought as final orders included ‘an order that confirms the applicant’s position on the committee of Circle on Cavill was valid and the applicant retains all rights accorded to a committee member’.  He also sought an order that the elections held at an annual general meeting on 23 and 30 June 2010 be declared invalid. 

2. Mr Urquhart sought interim orders, the effect of which would be to allow him to attend at and participate in all committee meetings of the body corporate pending a determination of the adjudication application. 

3. The application for interim orders was referred to an Adjudicator for a decision. In the course of submissions on that application, the respondent body corporate (the appellant in this proceeding) sought an order, under s 270 of the Act, dismissing the substantive application on the ground that the Adjudicator did not have jurisdiction to deal with it or that it was frivolous, vexatious, misconceived or without substance. The basis for the body corporate’s application in that respect was that the applicant, Mr Urquhart, had no standing to make the application because he was not in fact a committee member.

4. In considering the application for interim orders, the Adjudicator also considered the body corporate’s application to dismiss the principal adjudication application.  The Adjudicator effectively declined to dismiss the application, saying:

   As the main issue for determination in this application is whether or not the applicant is (or should be) a valid member of the committee, I am satisfied that the applicant has jurisdiction pursuant to s 227(1)(g) of the Act to seek interim orders regarding this outcome.

5. She then went on to dismiss the application for interim orders and concluded by saying: ‘The matter will now proceed in accordance with the normal processes undertaken by this Office, including the calling of further submissions.’

6. The body corporate appeals from that decision, pursuant to s 289 of the Act.  It contends that the Adjudicator erred in law in finding that Mr Urquhart had standing to make the application, given that the Adjudicator had found that ‘it seems that the applicant is currently not an elected member of the committee (per the AGM minutes).’ 

7. The minutes of the annual general meeting of the body corporate, which was held on 23 June 2010 and reconvened on 30 June 2010, record the following:

   The Chairperson prior to conducting the elections of Ordinary Members of the Committee, advised the meeting of reasons he believed a nomination from Paul Urquhart for the position of Ordinary Member of the Committee was invalid. 

   The Chairman advised the meeting that he will make a provisional ruling as he was Chairperson for this meeting and that the nomination received from Cheryl Williams nominating Paul Urquhart is invalid due to this person being ineligible …

8. It goes on to record that two of the nominees were declared elected and two further nominees were sought and made from the floor and were declared elected.

9. The AGM minutes therefore demonstrate that, although Mr Urquhart was nominated for election to the committee as an ordinary member, he was not in fact elected as a committee member, as his nomination was (rightly or wrongly) declared invalid by the Chairman of the meeting.  Although Mr Urquhart disputes that the minutes are entirely accurate, I do not understand him to dispute that, at that meeting, the Chairman declared his nomination to be invalid.  He contends that that was wrong.

10. It seems from material before the Adjudicator that the Chairman’s reasons for declaring Mr Urquhart ineligible to be a member of the committee were that he was not an owner of a lot, nor was he a member of the family of an owner because he was not a ‘spouse’ of the owner who nominated him, and he was (according to the Chairman) a letting agent for an owner and therefore excluded from eligibility under s 11(2) of the Accommodation Module. 

11. Whether Mr Urquhart was or was not eligible for election to the committee is not an issue before this tribunal. Mr Urquhart’s application for an adjudication was made on the basis that he was a committee member. He was therefore calling in aid s 227(1)(g) of the Act as the basis on which he maintains that he is a party to a dispute.

12. Section 38 of the Act provides that a person may make an application under that chapter if the person is a party to, and is directly concerned with, a dispute to which the chapter applies. Relevantly, s 227 provides that ‘a dispute’ is a dispute between the body corporate for a community titles scheme and a member of the committee of the body corporate.

13. Mr Urquhart claims that he ‘is and remains a “technical committee member” until such time as an independent person determines otherwise’.  I disagree.  He is not a committee member at all unless and until he is elected to that position.  He is clearly not currently a member of the committee of this body corporate.  Whether or not his nomination was rightly rejected by the Chairman of the annual general meeting, it was rejected and he was not elected as a member of the committee. 

14. If his nomination was wrongly declared invalid, then the lot owner who nominated him would be entitled to take steps to have that declaration of invalidity overturned and to seek appropriate consequential orders.  Instead of the owner taking such steps, Mr Urquhart has purported to do so in his own right, purportedly as a committee member.  But he has no such right.

15. In my opinion, Mr Urquhart had no standing to make an application, as he was neither an owner of the lot included in the community titles scheme, nor a member of the committee of the body corporate.  His application was misconceived and without substance.

16. Therefore, I am satisfied that the Adjudicator was wrong in not dismissing the application, pursuant to s 270.

17. In my opinion, the appeal ought to be allowed and the adjudication application should be dismissed.

18. The body corporate also seeks an order that Mr Urquhart pay its costs of this appeal and of the application before the Adjudicator. 

19. Section 270(3) of the Act relevantly provides that, if the Adjudicator makes an order under subsection (1)(c) (namely, that the application is dismissed because it is frivolous, vexatious, misconceived or without substance), the Adjudicator may order costs against the applicant to compensate the body corporate for loss resulting from the application. The only example of loss that is given is legal expenses reasonably incurred by the body corporate in relation to the application. The total amount of costs ordered under subs (3) must not be more than $2,000.

20. The body corporate has not made any submissions in support of its application for costs, nor given any indication of the amount which it seeks, either in respect of the adjudication application or in respect of this appeal.  However, given the early stage of the application, its costs of the adjudication application might be expected to be relatively minimal. 

21. The same might be said for this appeal. In addition, in respect to this appeal, it is necessary to keep in mind the general rule in this tribunal provided in s 100 of the Queensland Civil and Administrative Tribunal Act2009, namely that each party to a proceeding must bear the party’s own costs for the proceeding except as provided under that Act or an enabling Act. 

22. Nothing about this matter, and nothing raised in the applicant’s submissions, suggests any basis for departing from that rule.

23. In my opinion, the applicant has not demonstrated sufficient grounds for an order for costs of either the adjudication application, or this appeal.