Surf Breeze [2000] QBCCMCmr 619 (28 November 2000)

P J HANLYREFERENCE: 0474-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14122
Name of Scheme:	Surf Breeze
Address of Scheme:	3 Rutledge Street KIRRA QLD 4225

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Surf Breeze CTS 14122

I hereby order that A M Strata Administration shall, within fourteen (14) days of the date of this order, prepare an up-to-date statement of accounts for the body corporate for Surf Breeze CTS 14122.

I further order that within one (1) month of the date of this order A M Strata Administration shall hand all body corporate books and records, including bank statements and deposit books, (all of which are to be entered up to the date of handover) in its possession to Strata Title Management (Tweed Heads) Pty Ltd.

I further order that –

(1)	Strata Title Management (Tweed Heads) Pty Ltd of PO Box 134, Tweed Heads NSW 2485 is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of “Surf Breeze” 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 the end of the period contained within the agreement approved by the body corporate at the extraordinary general meeting held on 21 April 2000, or such other period as may be determined by the body corporate in general meeting.

I further order that within seven (7) days of receiving a copy of the roll from A M Strata Administration 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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0474-2000

“Surf Breeze” CTS 14122

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

1.	That voting papers, annual accounts and other documents be issued forthwith and annual general meeting held as soon as legal afterwards.
2.	That body corporate manager provide at annual general meeting a statement of accounts from 1 May 2000 until 1 week before annual general meeting to include bank balance, arrears of levies and creditors.
3.	That documents be available for transfer to new manager (as resolved) so that levies may be issued without delay.

Section 223(1) of the Act 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)).

In the supporting grounds, the applicant states that the financial year end date for this scheme is 30 April, but no annual general meeting has been called. The applicant further states that A M Strata Administration was appointed as body corporate manager for a period of one year from 2 July 1999, and, at an extraordinary general meeting held on 21 April 2000, the body corporate appointed a new body corporate manager to commence duty from 2 July 2000. The applicant further states that the delay in handing over the books and records to the new body corporate manager has resulted in a delay in issuing levies, which has in turn meant a delay in paying creditors.

A M Strata Administration was invited to respond to the application, although no response has been received. I have therefore assumed that the facts as set out in the application are not challenged.

This scheme is regulated under the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). Section 60 of the Standard Module requires that an annual general meeting must be called and held within 3 months after the end of each of the scheme’s financial years. The applicant has stated that this scheme’s financial year ends on 30 April, and therefore the annual general meeting should have been held before 30 July. Furthermore, the body corporate is clearly unable to operate if levies have not been issued.

Although the applicant has sought an order that A M Strata Administration call and hold the annual general meeting, I consider that the body corporate would be better served if I made an order that the incoming body corporate manager call and hold the meeting. My reason for this is that there has already been an inordinate delay in holding the meeting, and I do not consider any further delay is in the best interests of the body corporate. The incoming body corporate manager has consented to the appointment. In view of the fact that the outgoing body corporate manager will not be calling and holding the annual general meeting, the body corporate should be entitled to an adjustment of the fee payable under the management agreement.

I have made appropriate orders to place the body corporate on a proper legal footing.



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