24 Pacific Parade [2000] QBCCMCmr 504 (2 October 2000)

P G DanielsREFERENCE: 0553-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4745
Name of Scheme:	24 Pacific Parade
Address of Scheme:	24 Pacific Parade BILINGA QLD 4225

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

Richard Mark Pope and Susan Kay Pope



P G DanielsI hereby order that the application for an order:

We the owners of both lots 1 & 2 of above property seek permission to have the first annual general meeting of the Body Corporate under the Small Schemes Module with Richard Pope as Secretary and Susan Pope as Treasurer.

is dismissed.1y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0553-2000

“24 Pacific Parade” CTS 4745

The applicants, Richard Mark Pope and Susan Kay Pope, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

We the owners of both lots 1 & 2 of above property seek permission to have the first annual general meeting of the Body Corporate under the Small Schemes Module with Richard Pope as Secretary and Susan Pope as Treasurer.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The applicants seek an order that will allow them to convene the first annual general meeting of the Body Corporate.

The scheme comprises two lots. Both are owned by Kimpor Pty Ltd.

It is not necessary to make an order that will allow a general meeting to be called.

The power to call a general meeting usually vests in the Secretary of a body corporate: section 40(a) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation).

Normally, the Secretary is elected at an annual general meeting. However, in schemes where there are two lots in identical ownership section 11(2)(a) and (3) of the Regulation apply. Those sections provide:

(2) Subsection (1) does not apply for an annual general meeting if, when

the annual general meeting is held—

(a) there are only 2 lots included in the scheme, and the 2 lots are in

identical ownership; or

...

(3) If subsection (2)(a) or (c) applies, the committee is a committee of 1

consisting of the individual who is the owner, or the nominee of the owner,

of the lots, and the individual holds all the executive positions on the

committee.

The effect of these provisions is that the nominee of Kimpor Pty Ltd holds all executive positions on the Committee. These positions are chairperson, treasurer and secretary.

That nominee can call the first annual general meeting. The nominee can also chair the meeting.

The meeting will need to be held pursuant to the Regulation ie the Standard Module and not the Small Schemes Module. If the Body Corporate wants to change to the Small Schemes Module, then it will need to consent in general meeting to the recording of a community management statement that adopts that module.

In light of my reasons above, I dismiss the application.

I will arrange for several information sheets about the legislation prepared in this office to be forwarded to the applicants.