Westminister Gardens [2000] QBCCMCmr 501 (29 September 2000)

P J HANLYREFERENCE: 0490-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28315
Name of Scheme:	Westminster Gardens
Address of Scheme:	39 Garfield Road WOODRIDGE QLD 4114

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Westminster Gardens CTS 28315

I hereby order that –

(1)	Amanda Joy De Fina of Body Corporate Services Pty Ltd, PO Box 466, Toowong Q 4066 is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of “Westminster Gardens” 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 seven (7) 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.

I further order that the meeting shall be deemed to be the first annual general meeting of the scheme.
Amanda Joy De FinaBody Corporate Services Pty Ltd, PO Box 466, Toowong Q 40663212nn

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0490-2000

“Westminister Gardens” CTS 28315

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

a) That Amanda Joy DeFina of Body Corporate Services Pty Ltd be authorised to call and hold the first annual general meeting of the body corporate for Westminster Gardens CTS 28315.

b) That the financial year end date of the body corporate be deemed to be 30 June in each year.

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 body corporate for Westminster Gardens CTS 28315 was established on 7 July 2000 upon amalgamation of the body corporate for Westminster Gardens North CTS 5726 and Westminster Gardens South CTS 5727. The applicant further states that, as a consequence of the amalgamation, there is no committee to call and hold the first annual general meeting, as the previous schemes were dissolved upon amalgamation (section 85(1) of the Act).

The person nominated to call and hold the meeting has consented in writing to the appointment.

I have been provided with a copy of the minutes of the extraordinary general meetings held on 10 May 2000 for both of the previous schemes. In each instance, the then bodies corporate resolved to make application to this office for an order that a representative of Body Corporate Services Pty Ltd be appointed to call and hold the first annual general meeting of the amalgamated scheme. It was also resolved to change the financial year end date for the amalgamated scheme, if necessary.

The applicant seeks an order that the financial year end date be deemed to be 30 June in each year. “Financial year” is defined in Schedule 4 of the Act as follows:

“financial year”, of the body corporate for a community titles scheme

(other than a community titles scheme established for an existing

1980 Act plan under the transitional provisions), means—

(a) the period from the establishment of the scheme until the end of

the month immediately before the month when the first

anniversary of the establishment of the scheme falls, and each

successive period of 1 year from the end of the first financial year;

or

(b) if an adjudicator changes the financial year of the body

corporate—the period fixed by the adjudicator as the financial year

and each successive period of 1 year from the end of the period.

As the amalgamated scheme registered on 7 July 2000, the financial year end date is 30 June. It is therefore not necessary for me to make this part of the order sought.

However, 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.Amanda Joy De FinaBody Corporate Services Pty Ltd, PO Box 466, Toowong Q 40663212nn