David Court 1 [2000] QBCCMCmr 319 (30 June 2000)

P J HANLYREFERENCE: 0307-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6402
Name of Scheme:	David Court 1
Address of Scheme:	64 Jellicoe Street COORPAROO QLD 4151

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

Choa and Yin Investments Pty Ltd as Trustees, the owners of lots 1-8

I hereby order that –

1.	John Joseph Devlin of 848 Old Cleveland Road, Carina Qld 4152is appointed as administrator to call, hold and chair a general meeting (“the meeting”) of “David Court 1” within three (3) months of the date of this order.
2.	The administrator shall hold the appointment for the period beginning on the date of this order until the close of the meeting ordered.

I further order that –

1.	Under section 42(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the “Standard Module”) no notice of meeting need be given.

2.	The meeting must consider and determine the matters set out in section 62(3) of the Standard Module.

3.	The meeting may consider any other motion.

I further order that the meeting shall be deemed to be the first annual general meeting of the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0307-2000

“David Court 1 ” CTS 6402

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

That the commissioner order Choa & Yin Investments Pty Ltd ATF the YC Shum Family Trust to convene an annual general meeting of the body corporate and that that meeting be declared to be the first annual general meeting of the body corporate and further order that the financial year end for the body corporate be

Section 223(1) of the Act 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)).

Section 62 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) provides that the original owner must call and hold the first annual general meeting of the body corporate within one month after the first of the following to happen –

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.

The agenda for the meeting must include the items set out in section 62(3) of the Standard Module. If the original owner does not call and hold the first annual general meeting as required by the section, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first annual general meeting within a stated time (section 62(4)).

In the supporting grounds, the applicant states that the plan was registered prior to the commencement of the Act, and although an extraordinary general meeting was held on 15 July 1998, the first annual general meeting has not been held. The applicant further seeks an order setting the financial year in accordance with the provisions of the previously approved budgets.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 62(4) of the standard module. The appointment is necessary to authorise a person to call and hold the first annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis. The person nominated to call the meeting has consented in writing to the appointment.

I do not propose to order a change to the financial year of the body corporate, as that will be determined by reference to the date on which the meeting, which I have ordered, is ultimately held. If, however, the body corporate wishes to further change the financial year end at any time in the future, it will be necessary for a motion to that effect to be considered by the body corporate in general meeting, and then for an order to be made by this office (see section 229 of the Act.)John Joseph Devlin848 Old Cleveland Road, Carina Qld 41523nil2nn