Reef Terraces [2000] QBCCMCmr 120 (2 March 2000)

P G DanielsREFERENCE: 0455-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	888
Name of Scheme:	Reef Terraces
Address of Scheme:	Wharf Street PORT DOUGLAS QLD 4871

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

Narith Pty Ltd the owner of lot 110

P G DanielsI hereby order that Barard Management Pty Ltd (the appointee) of 4th Floor, Toowong Tower, 9 Sherwood Road, Toowong is appointed to call, hold and chair a general meeting (the meeting) of Reef Terraces within 3 months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting, and the election of the executive members of the committee and the ordinary members of the committee, if any, who shall hold such positions, subject to section 25 of the Body Corporate and Community Management (Standard Module) (the standard module), until the next annual general meeting is held.

I further order that, for the purposes of convening, holding and chairing the meeting, the appointee shall have all the powers, authorities, duties and functions of the chairperson, secretary and treasurer of the body corporate, with the exception of the following powers -

a) to further delegate any of those powers, authorities, duties and functions to another; or

b) to make any decision on a restricted matter within the meaning of section 26 of the standard module; or

to incur expenditure, in respect of a single project, beyond the relevant limit for committee spending.

I further order that within seven (7) days of the appointee receiving a copy of this order, the appointee must give a copy of this order to each person whose name appears on the roll as the owner of a lot included in the scheme (lot owners).

I further order that lot owners shall have the right to submit to the appointee, motions for inclusion on the agenda for the meeting; and

a) if the lot owner is an individual - to nominate the lot owner or another individual for election as a member of the committee; and

b) if the lot owner is not an individual - to nominate an individual for election as a member of the committee;

Provided that

a) the motions and / or nominations are received by the appointee within 1 month from the date of this order; and

b) the motions and / or nominations are otherwise in accordance with the requirements of the standard module;

then the appointee shall include the motions on the agenda of the meeting, or nominations on the ballot for election as members of the committee.

I further order that the appointee shall not give notice of the meeting until after the expiration of 1 month from the date of this order.

I further order that -

a) at least 21 days notice of the meeting must be given to lot owners,

b) notice of the meeting is to be given in accordance with section 42 of the standard module;

c) the agenda of the meeting must include the items set out in section 45(2) of the standard module, and the meeting may determine any other motion validly before it;

d) except as provided for in this order, the meeting and all related matters must be conducted in accordance with the standard module.

I further order that the appointee shall hold the appointment for the period beginning from the date of this order until the completion of the meeting.

I further order that the Body Corporate is liable to pay the appointee the sum of $3,620 for calling, holding and chairing a general meeting in accordance with this order.Barard Management Pty Ltdof 4th Floor, Toowong Tower, 9 Sherwood Road, Toowong31121y1nn
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0455-1999

“Reef Terraces” CTS 888

The applicant, Narith Pty Ltd, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

Ratifies the calling of an AGM on 14 November 1999.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement. An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)).

Specifically, without limiting the power of an adjudicator to make an order under section 223(1), an adjudicator may order the body corporate to call a general meeting of its members to deal with stated business or to change the date of an annual general meeting (section 223(3)(p)). Alternatively, the adjudicator may order the appointment of an administrator, and authorise the administrator to perform obligations of the body corporate, its committee, or a member of its committee under this Act or the community management statement (section 223(3)(v)).

The administrator has the powers given to the administrator under the order (section 248(2)). Section 248(3) provides that the order may –

a)	withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and
b)	require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and
c)	fix the administrator’s remuneration.

An order appointing an adjudicator may be the only order the adjudicator makes for an application (section 223(4)(a)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The Body Corporate and Community Management Act (Standard Module) (the Standard Module) section 60 provides that an annual general meeting (other than the first annual general meeting) must be called and held within 3 months after the end of each of the scheme’s financial years. A general meeting (which includes an annual general meeting) may be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions (see section 40(c) of the Standard Module). Moreover, the agenda for an annual general meeting must include the items set out in sections 45(2) and (3) of the Standard Module.

The applicant in this case has been represented by Dr William Fung.

Dr Fung has sought approval to call a general meeting of the Body Corporate. The Body Corporate is in an important transition phase in respect of its commercial arrangement with the manager/letting agent. It is envisaged that new agreements will be considered at a general meeting. However, I am informed that these agreements are with the previous manager/letting agent, Port Douglas Reef Resorts Limited.

I examined the substantial material that was submitted with this application and submissions. I formed the view that it would be preferable to appoint a professional body corporate manager rather than Dr Sung to call and hold the meeting. There were a number of reasons for this view. The calling and holding of a general meeting involves a substantial amount of work. The work can be quite technical and require expertise given the legislative requirements. I wanted to lessen the risk of defects in the calling and holding of the meeting. It would be particularly unfortunate if resolutions arising from the meeting were successfully challenged due to a failure to comply with the law, given the nature of the motions to be considered at the meeting. It was clear to me that the validity of the meeting would be at risk if it proceeded with the papers that had been prepared by Dr Sung. However, I do wish to acknowledge the very substantial and useful work that Dr Sung has performed. I encourage Barard Management Pty Ltd to use this work where appropriate.

I have ordered that Barard Management Pty Ltd is entitled to a fee of $3,620. This means each lot owner will be responsible for paying approximately $25 for the calling and holding of the meeting. I believe that this is an acceptable fee given the amount of work involved and the disbursements including substantial photocopying. Quotes were obtained from four managers. Barard’s quote was marginally cheaper than at least two other quotes. I am also satisfied that the fee of $3,620 is commercially reasonable.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold a general meeting of the scheme.Barard Management Pty Ltdof 4th Floor, Toowong Tower, 9 Sherwood Road, Toowong31121y1nn