Kalga Court [2000] QBCCMCmr 394 (2 August 2000)

P J HANLYREFERENCE: 0411-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23424
Name of Scheme:	Kalga Court
Address of Scheme:	37 Adelaide Park Road YEPPOON QLD 4703

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

Ronald Imber and Patricia Dorothy Imber; Peter John Haigh; Anthony George Green; Enid Barbara Burry and Mary Leone McHugh, the owners of lots 1, 3, 4, 6 and 7 respectively



I hereby order that the annual general meeting scheduled for 9.30am on 3 August 2000 shall not proceed.

I further order that within seven (7) days of the date of this order the secretary, Rod Benson, shall hand all books and records, including financial records and statements, for Kalga Court in his possession to Brian Hooper, of Brian Hooper Real Estate, 5 Normanby Street, Yeppoon.

I further order that within seven (7) days of the date of this order the treasurer, Inez Smallecombe, shall hand all bank statements and financial records for Kalga Court in her possession to Brian Hooper, of Brian Hooper Real Estate, 5 Normanby Street, Yeppoon.

I further order that

(1)	Brian Hooper of Brian Hooper Real Estate, 5 Normanby Street, Yeppoon Q 4703 is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of “Kalga Court” within three (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 committee members.
•

(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.

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 nomination and election procedures for the election of committee members shall be in the same manner as provided for in sections 14 and 15 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

(3)	The administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting.

(4)	The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 42 and 45 of the Standard Module and all other provisions relating to meetings under Part 4 of the Standard Module.

(5)	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 0411-2000

“Kalga Court” CMS 23424

The applicants, Ronald Imber and Patricia Dorothy Imber; Peter John Haigh; Anthony George Green; Enid Barbara Burry and Mary Leone McHugh, the owners of lots 1, 3, 4, 6 and 7 respectively, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	To set aside the improperly called annual general meeting proposed for 3rd August 2000.

The applicants have also sought the following interim order of an adjudicator, quote -

1.	To invalidate and set aside the proposed annual general meeting of the body corporate for Kalga Court
2.	For the treasurer to be ordered to supply a financial report for the period ending 30 April 2000 and hand it over with all the financial records of the body corporate to Brian Hooper Real Estate
3.	Order the secretary to hand over the remainder of the body corporate records to Brian Hooper Real Estate
4.	Appoint Brian Hooper Real Estate to call for nominations and submission of motions from lot owners, to prepare a budget and other necessary statements and to send out a notice of an annual general meeting and to chair it.

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)).

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 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 administrator 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)).

In the supporting grounds, the applicants state that the majority of owners wish to appoint a body corporate manager so as to have the body corporate function in terms of the Act.

Under the powers delegated to me by the Commissioner (section 189 of the Act) I am satisfied, under section 194(5) that there is good reason for dispensing with the requirement to give notice of this application to each affected person and the body corporate. I am so satisfied because of the urgency of the application, in that the meeting which the applicants seek to stop is scheduled for 3 August 2000, and because 5 of the 7 owners in this scheme are applicants. I have also spoken with the secretary, Mr Rod Benson, who, in addition to performing the secretarial duties, advised me that he holds power of attorney for the owner of one of the remaining two lots. The owner in question is his mother.

There are numerous matters in relation to the scheduled meeting on 3 August 2000, which do not comply with the requirements of the Act and the Standard Module. Firstly, sufficient notice of the meeting was not given (section 43 of the Standard Module); secondly the agenda of the meeting does not include those matters required by section 45 of the Standard Module; thirdly owners have not been invited to submit nominations for the committee or propose motions to be included on the agenda of the meeting (sections 13 and 41 of the Standard Module); fourthly no proxy forms or voting papers were included with the notice of meeting (section 42 of the Standard Module).

In all of the circumstances, I am satisfied that the meeting scheduled for 3^rd August 2000 should not proceed, and I have ordered accordingly. I am also satisfied that a person should be appointed to call and hold a proper annual general meeting for this scheme. I have appointed Brian Hooper as administrator for this purpose. Mr Hooper has consented in writing to his appointment. I am satisfied that this appointment is necessary to place the body corporate on a proper legal footing.

I have also ordered that all books and records for “Kalga Court” in the possession of either the secretary, Rod Benson, or the treasurer, Inez Smallecombe, should be handed to Mr Hooper. It will then be necessary for Mr Hooper to prepare, amongst other things, a financial report and budgets for presentation to owners at the annual general meeting.

The applicants have sought an order that Mr Hooper be appointed as body corporate manager by this office. This office does not appoint body corporate managers; that is a function of the body corporate (section 87 of the Standard Module). The applicants should ensure that an appropriate motion is placed on the agenda of the meeting, which I have ordered, if they wish to have Mr Hooper appointed as body corporate manager.

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 applicants, is final in its determination of this matter. If the parties consider that an appeal of this decision is warranted, then they should appeal the interim order.