The Abbey 160 Roma Street [2000] QBCCMCmr 291 (20 June 2000)

P J HANLYREFERENCE: 0289-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4532
Name of Scheme:	The Abbey 160 Roma Street
Address of Scheme:	160 Roma Street BRISBANE QLD 4000

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

Richard Caleb Pratt, the co-owner of lot 67

I hereby order that

(1)

Alan D Buckle of Ernst Body Corporate Management Pty Ltd, EBCM House, 33 Mein Street, Spring Hill Qld 4000 is appointed as administrator to call, hold and chair an extraordinary general meeting (“the meeting”) of The Abbey 160 Roma Street CTS 4532 within two (2) months of the date of this order for the purpose of the consideration of the motions included on the Requisition for an Extraordinary General Meeting delivered to the secretary, Averil Ward, on 31 March 2000.

(2)	The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered.

(3)	The body corporate must pay him the sum of $450.00 plus disbursements for all work undertaken as is reasonable in carrying out the duties of administrator specified in this order, which total amount may be levied on owners as a contribution, and recoverable as a contribution, under the Act.

I further order that within seven (7) days of the date of this order the secretary, Averil Ward, shall hand over the body corporate records to the administrator, Alan Buckle.

I further order that within fourteen (14) days of the date of this order the administrator must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme (“lot owners”).

I further order that –

(1)	For the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of the chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers -
•	to further delegate any of those powers to another person; or
•	to incur any expenditure apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

(2)	The administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0289-2000

“The Abbey 160 Roma Street” CMS 4532

The applicant Richard Caleb Pratt, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That either the body corporate committee issue a notice of extraordinary general meeting within 7 days of the order as requisitioned by 25 lot owners out of the 94 lots or Alan Buckle of Ernst Body Corporate Management Pty Ltd be directed to convene the required meeting.

The applicant has also sought an interim order of an adjudicator in similar terms.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that 25 owners in the scheme have requisitioned an extraordinary general meeting by delivering the necessary notice to the secretary under section 59 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module). The applicant further states that the secretary requested a delay of the meeting to coincide with the annual general meeting. The applicant further states that the annual general meeting is not due to be held until August/September 2000, which is 4-5 months after the requisition date. The applicant further states that no action has been taken by the secretary to call the requested meeting. The applicant further states that Alan Buckle has consented to organising the meeting in the event that the committee refuses to comply with the requisition.

The committee was invited to respond to the application. The secretary stated that the body corporate auditor has been requested to prepare the audit for the current financial year, and it is expected that the audit will be available by mid August 2000. The secretary further states that upon receipt of the audit, the committee proposes to call the annual general meeting. The secretary further states that a preliminary notice has been forwarded to all members of the body corporate by BUGT Management. The secretary requests that, in the circumstances, no order be made for an extraordinary general meeting, and that the application be dismissed.

Section 59 of the Accommodation Module provides as follows:

Requirement for requested extraordinary general meeting [SM, s 61]

59.(1) An extraordinary general meeting (a “requested extraordinary

general meeting”) of the body corporate must be called if a notice asking

for an extraordinary general meeting to consider and decide motions

proposed in the notice is—

(a) signed by or for the owners of at least 25% of all the lots included

in the scheme; and

(b) given to the secretary or, in the secretary’s absence, the

chairperson or, if the committee has not yet been chosen, given to

the original owner.

(2) The secretary may be presumed to be absent if a notice is given to the

secretary at the address for service of the body corporate, and no reply is

received within 7 days.

(3) A requested extraordinary general meeting must be called and held

within 6 weeks after the notice asking for the meeting is given.

(4) A requested extraordinary general meeting of the body corporate may

be called even though the body corporate’s first annual general meeting has

not yet been held.

The Requisition for an Extraordinary General Meeting was given to the secretary on 31 March 2000. On 6 April 2000 the secretary acknowledged receipt of the requisition from 24 owners, but pointed out that the requisition signed on behalf of lot 2 was invalid, as the registered owner of lot 2 is a corporation, and the requisition had been signed by an individual. The secretary also pointed out that the agreement with Ernst Body Corporate Management was not attached to the documents received. The secretary requested that a copy of the agreement be forwarded; a further requisition signed on behalf of lot 2 be forwarded and a letter from the applicant be forwarded. From the material provided to me, it appears that the requested material was forwarded to the secretary on 10 April 2000. On 19 May 2000, the applicant wrote a further letter to the secretary demanding that the requested meeting be called. The meeting should have been called within 6 weeks after the date on which all necessary material was provided to her, namely by 22 May 2000.

In her response dated 13 June 2000, the secretary has provided no reason for not calling the meeting, but rather requests that the application be dismissed simply because an annual general meeting is to be held around September. I do not consider that sufficient reason has been provided for not calling the requested meeting. The Accommodation Module provides the process by which such a meeting is to be called. There is no discretion, provided that the requirements of the section have been met. Whilst the material forwarded to the secretary initially was deficient, the further material which was requested has since been forwarded to her. The purpose of the section is to allow for a meeting to be called in circumstances where a sufficient number of owners support the request. I am satisfied that 25 owners have requisitioned the meeting, which is greater than the 25% of owners required by the section. I am further satisfied that the other requirements of the section have been met.

In view of the fact that the secretary has not complied with the request within the time frame provided, I do not consider that she should be afforded any further opportunity to call the meeting. As I have been provided with the name of a person who is willing to call the meeting, and have that person’s consent to the appointment in writing, I propose to order that that person call and hold the meeting. I consider it unfortunate that the secretary did not call the meeting as requested, as there would appear to now be a greater cost to the body corporate than would otherwise have been the case, as the administrator is entitled to charge a professional fee for calling the meeting.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If any party considers that an appeal of this decision is warranted, then they should appeal this order.