Camelot [2000] QBCCMCmr 57 (9 February 2000)

P J HANLYREFERENCE: 0014-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21486
Name of Scheme:	Camelot
Address of Scheme:	7 Chamberlain Street ROCHEDALE SOUTH QLD 4123

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

Tracey Ann Hulley, the co-owner of lots 12 and 29

I hereby order that –

(1)	Janelle Godden of KB One Pty Ltd, Dennis Court, 2/8 Dennis Road, Springwood Qld 4127 is appointed as administrator to call, hold and chair a general meeting (“the meeting”) of “Camelot” 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 fourteen (14) 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 a 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 books and records currently in the possession of M.J. Preusker & Associates Pty Limited shall be made available for collection by Ms Janelle Godden of KB One Pty Ltd within 2 days of the date of this order.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0014-2000

“Camelot” CTS 21486

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

To have an administrator appointed to co-ordinate an EGM and complete all necessary paperwork to achieve this including planning out budgets, admin. & sinking fund levies and replacement body corp management applications.

To appoint a new committee due to my belief that the body corporate committee has ceased to exist and that no validly appointed committee is presently in place.

To have an order placed on ADBC to return the books and reimburse any unapproved and unused management fees drawn after the AGM on November 10^th 1999

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 Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) 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). The agenda for an annual general meeting must include the items set out in sections 45(2) and (3) of the Standard Module.
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In the supporting grounds, the applicant states that she and the majority of other owners in the scheme believe that the body corporate has had no direction since the Annual General Meeting held in November 1999. The applicant further states that no accounts or levies have been generated for 2 financial quarters. The application was supported by 22 other owners.

On 4 February 2000 I interviewed the applicant and Ms Razija Podic, the current chairperson.
The chairperson advised me that the books and records of the body corporate have been handed over by the previous body corporate manager, and are now in the possession of Ms Brigitte Hartmann, the managing director of M.J. Preusker & Associates Pty Limited, Body Corporate Consultants and Body Corporate Managers. The chairperson proposed that Ms Hartmann be appointed as administrator to call an Extraordinary General Meeting, whereas the applicant, supported by the majority of owners, proposed that Ms Janelle Godden of KB One Pty Ltd, be appointed for that purpose.

Ms Godden consented in writing to an appointment, however Ms Hartmann declined, on the basis that the majority of owners had indicated their preference for Ms Godden’s company to be appointed, and it was therefore her view that “our appointment at this stage would not overcome the current dissatisfaction expressed, rightly or wrongly, by the majority of owners.”

Obviously, in light of the order which I propose to make appointing Ms Godden as administrator, it will be necessary for her to obtain the books and records. I am certain that Ms Hartmann will hand over the books and records immediately she receives a copy of my order, but for the sake of completeness, I have also ordered that the books and records be handed over to Ms Godden.

It is evident that there is considerable dissatisfaction with the present state of the body corporate. I note that the applicant believes that the committee has ceased to exist. This belief appears to be based on the fact that three of the committee members who were appointed at the Annual General Meeting in November 1999 subsequently resigned, for reasons which it is not necessary to discuss now, leaving only the chairperson and one other member of the committee. There was no nomination at the Annual General Meeting for the position of secretary or treasurer. Since that time, the remaining members of the committee have filled some of the vacancies, with the chairperson assuming the role of secretary and treasurer, and the previous chairperson agreeing to be appointed as an ordinary member of the committee. This was effected by a flying minute of the committee on 14 January 2000, and is provided for in section 25(3) of the Standard Module.

The present position, therefore, is that there is one person carrying out the duties of chairperson, secretary and treasurer, a situation for which the Standard Module provides (section 9(2)). There are also two committee members. The committee must consist of at least 3, but not more than 7, persons (section 9(3) of the Standard Module). Under normal circumstances, it would be necessary for four more committee members to be appointed to fill the vacancies, either by the existing committee, or by the body corporate in general meeting (section 25(3) of the Standard Module).

I am concerned, however, that if only the vacancies are filled, there may well be a committee comprised of owners from both sides of what appear to be the two factions in this body corporate. That may result in further disharmony, and will not be conducive to the smooth operation of body corporate business. I have therefore decided that, although there is a validly appointed partial committee in existence, it is appropriate that a new election be held for all committee positions. The present committee will hold their positions until the commencement of the meeting which I shall order to be held, at which time all committee positions shall be deemed to be vacant. In addition, Ms Godden, whom I shall appoint as administrator for the purposes of calling and holding the meeting, shall have all the necessary powers to carry out that role. These are detailed in the order.

I wish to make it quite clear that, in ordering a new committee election, I make no finding as to the capacity of the present committee to hold office, and no adverse inference should be drawn against those persons. My decision is based solely on the belief that a new election will allow owners to have a fresh start. There is no reason that the present committee cannot be nominated for the new committee, and, if they have the support of owners, they could be re-elected.

Owners should note that I have provided for modified nomination and election procedures in relation to the committee, even though the meeting which I have ordered to be held is not the first Annual General Meeting (see sections 14 and 15 of the Standard Module). It should also be noted that the meeting is an Extraordinary General Meeting, not an Annual General Meeting, although the agenda will include a number of motions which are traditionally considered at an Annual General Meeting, namely motions relating to budget, and the setting of levies for the administrative fund, and the sinking fund. Undoubtedly, there will also be motions relating to the appointment of a new body corporate manager, and in that regard, owners should be aware of the provisions of sections 87 and 104 of the Standard Module.