McDave Villas [2000] QBCCMCmr 399 (3 August 2000)

C G YOUNGREFERENCE: 0413-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26256
Name of Scheme:	McDave Villas
Address of Scheme:	21 Starling Street KEWARRA BEACH QLD 4879

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

Barbara Anne McDONALD, a co-owner of Lot 1,



C G YOUNGI hereby order that –

(1)	N.Q. Body Corporate Management Pty Ltd of Suite 3, First Floor, Westcourt Manor, 254-256 Mulgrave Road, Cairns Qld 4870 is appointed Administrator to call, hold and chair an annual general meeting (“the meeting”) of “McDave Villas” within one (1) month of the date of this order for the purpose of -

• the consideration of motions included on the agenda of the meeting; and

• deciding committee executive member positions.

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

I further order that upon receipt 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.

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)	Executive members of the committee shall be chosen in accordance with section 11(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997.

(3)	The Administrator must, upon receipt of this order, give notice inviting owners to submit motions for inclusion on the agenda of the meeting.

(4)	The Administrator must give at least 1 (one) weeks written notice of the meeting but shall first ensure that owners have had sufficient time to submit any motions.

(5)	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

I further order that the meeting shall be deemed to be the First Annual General Meeting of the scheme.2y2y 1n

2n
C G YOUNG 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0413-2000

“McDave Villas” CTS 26256

The applicant, Barbara McDonald of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

That an Annual General Meeting (preferably to be known as the First Annual General Meeting of the Body Corporate for “McDave Villas” Community Titles Scheme 26256) be convened as soon as conveniently possible to allow for the sale of Unit 1 (Settlement date is 22 August 2000).

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 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)).

Section 60 of the Standard Module regulation 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 states that there is no record of any general meeting having been held. The owners of the only other lot in the scheme, Glenn Cashman and Cheryl Jonsson of Lot 2, have given their written consent to the setting up of the body corporate. The applicant now wishes to sell the lot and is seeking the appointment of an Administrator to convene a meeting in order to establish proper records of the body corporate and to put the body corporate on a proper legal footing. The applicants understandably wish to convene the meeting as soon as possible. While this is a simple matter in a two-lot “duplex” scheme, certain minimum requirements are necessary, particularly that proper insurance is taken out for damage and public liability, that the by-laws are appropriate, and proper funds are established.

In the circumstances, I am satisfied that the appointment is necessary. In order to allow the meeting to proceed as soon as possible, I have set minimum periods to permit this.

The letter of consent from N.Q. Management Pty Ltd shows that a fee of $600 has been agreed between it and the applicant. As the fee is not mentioned in the application itself, and the other owners have not signified their consent to the cost, I have not included it as a condition for the appointment. I shall leave its payment as a matter for the parties to resolved themselves.2n