Paddington Lane [2000] QBCCMCmr 458 (12 September 2000)

P G DanielsREFERENCE: 0429-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19170
Name of Scheme:	Paddington Lane
Address of Scheme:	141 Herses Road EAGLEBY QLD 4207

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

Terri Leenders a co-owner of lot 20 and Rhonda Willis a co-owner of lot 18



P G DanielsI hereby order that the application for interim orders that:

The Commissioner for Body Corporate and Community Management terminate the engagement of A.M. Strata Administration as Body Corporate Managers for Paddington Lane CTS 19170 and appoint as administrators Body Corporate Services Pty Ltd, P.O. Box 444, Broadbeach.

is dismissed.1y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0429-2000

“Paddington Lane” CMS 19170

The applicants, Terri Leenders, a co-owner of lot 20 and Rhonda Willis, a co-owner of lot 18, have sought an interim and final order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

The Commissioner for Body Corporate and Community Management terminate the engagement of A.M. Strata Administration as Body Corporate Managers for Paddington Lane CTS 19170 and appoint as administrators Body Corporate Services Pty Ltd, P.O. Box 444, Broadbeach.

Section 225(1) 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)).

The body corporate manager for this scheme is A & M Strata Administration (AMSA). The applicants seek orders terminating the engagement of AMSA and appointing an administrator.

They allege the following contraventions of the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) that involve AMSA:

1.

The annual general meeting (AGM) of 14 November 1998 was changed from 7 November 1998 and the notice and agenda was not sent until 24 October 1998. The notice incorrectly stated that only one proxy could be held. The Committee did not prepare a new community management statement as required by motion 24.

2.

The AGM of 2 May 2000 should have been held between 1 July 1999 and 30 September 1999. There was a relatively short period of time for owners to advise of nominations to the Committee and motions to be considered at the AGM. The notice and agenda were not in accordance with the Act, although no details are given. The applicants have not received minutes of the AGM on 2 May 2000. The applicants then comment on particular motions.

Motion 1 – confirm minutes of previous AGM – ruled out of order as the minutes were confirmed at an extraordinary general meeting on 27 March 1999.

Motion 2 – approval of accounts – there are discrepancies between accounts prepared by AMSA and an auditor.

Motions 3 and 4 – administration fund and sinking fund contributions – the motions incorrectly state they were submitted by the Committee but the Committee did not prepare the agenda, no budgets were submitted to owners and one of the end dates for a contribution period is wrong.

Motion 6 – appointment of an auditor – the actual name of an auditor is not stated.

Motion 13 – appointment of a different body corporate manager – typographical errors.

3.	A person was elected to the Committee at the AGM on 2 May 2000 without the Body Corporate being informed that he would be a non-voting member of the Committee.
4.	AMSA failed to pay a former body corporate manager money owing which resulted in a court judgment being obtained against the Body Corporate.

Order

An adjudicator does not have jurisdiction to terminate the engagement of a body corporate manager. That is a matter which the Body Corporate must determine. I note motion 12 on the voting papers for the AGM on 2 May 2000 provided that AMSA be placed in default for failing to honour its agreement. I cannot make an order terminating the engagement of AMSA.

I do have power to appoint an administrator to a Body Corporate. However, that power is used sparingly and usually in circumstances where the affairs of a Body Corporate have substantially broken down. I am not satisfied that the affairs of this Body Corporate have broken down such that the appointment of an administrator is necessary. I have taken into account the alleged contraventions of the Act and the Regulation detailed by the applicants. The chairperson of the Body Corporate, Sarah Vasiliadis along with other Committee members and owners made a submission in respect of this application. They relevantly state, “We can assure you that neither member of the Committee are “green” and are all professional business persons that are capable of acknowledging and dealing with the past problems and any future problems of the Estate and will move forward to finally put the estate “back on track”. It is also indicated that there is a pending AGM. The applicants may wish to consider submitting appropriate motions for consideration by the Body Corporate.

I dismiss the application.

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 the applicants consider that an appeal of this decision is warranted, then they should appeal the interim order.