Rangeview Estate [2000] QBCCMCmr 52 (8 February 2000)

C G YOUNGREFERENCE: 0051-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18951
Name of Scheme:	Rangeview Estate
Address of Scheme:	4 Private Street ROCKHAMPTON QLD 4700

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Anthony McMahon and Jean McMahon, through their representative Duane Russell Sewell, the co-owner of Lot 1

C G YOUNGI hereby order that –

(1) Duane Russell SEWELL of Rees R & Sydney Jones, Solicitors, of 186 Quay Street, PO Box 83 Rockhampton Q 4700 is appointed administrator to call, hold and chair an annual general meeting (“the meeting”) of “Rangeview Estate” 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
•	the election of committee members.

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

I further order that the administrator must give a copy of this order with the notice of meeting to each person whose name appears on the roll.

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 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, except that only seven (7) days notice of the meeting need be given.

I further order that, for the purpose of determining the future financial year of the body corporate, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.

2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0051-2000

“Rangeview Estate” CTS 18951

The applicant, Duane Sewell as representative of Anthony and Jean McMahon of Lot 1, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) for the appointment of an Administrator to restore the body corporate to a functioning body, able to operate on a proper legal footing.

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.

A previous order, Order 310-99 of 27 July 1999, was given for a meeting to be held however for whatever reason a meeting was not held. A fresh application has now been lodged for a similar order. The consents of the majority of owners, representing Lots 1, 2 and 4, still stand, as does that of Duane Sewell to act as administrator. In view of the previous correspondence sent owners, the applicant has requested that: the need to serve copies of the order on owners prior to the notice of meeting being given be waived; the need to seek submissions again be waived; and, in view of the urgency of the matter, the period of notice be reduced to 7 days. In the circumstances I consider these are reasonable and have altered the order accordingly.

In my previous reasons I gave as the basis of the order, the body corporate had not been operating in accordance with the legislation for some time and has not held the appropriate meetings. There is no elected committee to properly authorise the holding of a general meeting. A majority of owners (Lots 1, 2 and 4) have consented in writing to the appointment. Those grounds still apply.

In the circumstances, I am satisfied that the appointment is necessary to facilitate the holding of a general meeting to allow the body corporate to administer itself in accordance with the legislation.x