Pacific Sands [2000] QBCCMCmr 150 (22 March 2000)

C G YOUNGREFERENCE: 0122-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	104
Name of Scheme:	Pacific Sands
Address of Scheme:	1-19 Poinciana Street HOLLOWAYS BEACH QLD 4878

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

C G YOUNGI hereby order that the application for an order that the body corporate be authorised to hold a meeting deemed to be the annual general meeting required to be held prior to 30 November 1999, is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0122-2000

“Pacific Sands” CTS 104

The applicant Body Corporate Manager, Cairns Body Corporate Management Pty Ltd, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

The Annual General Meeting to be held prior to 30 November 1999 failed to take place. An order is sought from the Commissioner to hold the Body Corporate Annual General Meeting within 28 days from the date of his ruling, the business of that meeting being limited to minutes of the last Annual General Meeting, Budgets, Audit, Taxation, Election of Committee.

Section 223(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 this Act or the community management statement; or

(c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The supporting grounds merely state that the body corporate failed to hold its annual general meeting (“AGM”) within the 3 month period permitted by the legislation. In its covering letter the applicant advises that it has recently been appointed the Body Corporate Manager and had only found out about the failure of the body corporate to hold its AGM when it scrutinised the records.

It appears that the body corporate has not complied with the legislation in either seeking nominations (and motions) within the required period of the end of its financial year (between 3 and 6 weeks – see section 13(3) of the Standard Module) or received the nominations before that date (see subsection (4)). Had this been done and the meeting date been delayed for some good reason, then I would have considered an order. However, in the circumstances I do not consider an order is appropriate – it would merely be authorising an act which the body corporate is required to carry out and has overlooked.

The body corporate still needs to hold a meeting to deal with all of those matters the Body Corporate Manager has listed out. The body corporate should call a meeting, to be deemed to be the missed AGM, with similar timing periods for committee nominations to that applicable under the legislation based on the financial year-end date. That is, the meeting should be called and held in as similar a manner as possible to that required of a “normal” AGM.

The body corporate remains in breach of its duty in not calling the meeting in time, and that is a matter that cannot be remedied whether by an order of the kind sought or otherwise. The body corporate must do the best it can in the circumstances ensuring that the rights and interests of the owners are preserved.

I would also point out that were the application to have proceeded to consideration of an order with submissions being sought, it would been required for the application to be in the name of the body corporate with a written authorisation from the committee.



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