Forty-Three Britannia [2000] QBCCMCmr 63 (10 February 2000)

C G YOUNGREFERENCE: 0048-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10884
Name of Scheme:	Forty-Three Britannia
Address of Scheme:	43 Britannia Avenue BROADBEACH QLD 4218

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

Roslyn Anne JEWELL, as a co-owner of Lot 5,


C G YOUNGI hereby order that the secretary of the body corporate, Marika Maselli of A & M Strata Administration, must convene an extraordinary general meeting of the body corporate to be held within six (6) weeks of the date of this order to consider whatever motions are properly before it, and at the close of the meeting Marika Maselli is to return to the applicant, Roslyn Anne Jewell, or in her absence any other owner that is present at the meeting, all of the records of the body corporate in a complete and accurate form up to the date of the meeting.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0048-2000

“Forty-Three Britannia” CTS 10884

The applicant, Roslyn Jewell of Lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote –

I am seeking an order that A & M Strata Administration be replaced by Professional Body Corporate Management of Southport as managers of the body corporate for Forty-Three Britannia Avenue. And that the books of the body corporate be handed over to Professional Body Corporate Management.

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 A & M Strata Administration has not convened an annual general meeting since taking over administration of the scheme in December 1997. The applicant and other owners have received no response to their inquiries of the firm’s representative, Marika Maselli. The owners are dissatisfied with the lack of service and wish to have the body corporate records returned and change to another Body Corporate Manager.

In order to resolve the matter promptly, on 9 February 2000 I conducted a tele-conference with the applicant and Maselli. Maselli said that she was the secretary and had never been appointed Body Corporate Manager. She acknowledged that no annual general meetings had been held; she said that she had problems with one of the owners who had verbally abused her a number of times. She offered that she was willing to hand over the body corporate records and would convene a general meeting so that the body corporate could engage a Body Corporate Manager. The financial records were not presently up to date because the employee who performs this task was absent in the Philippines, however they would be ready in a few weeks. She agreed to return the body corporate records at the meeting.

The applicant said that she would be happy with this arrangement.

I accept the undertaking given by Maselli to convene the meeting and to return the records at that meeting. To ensure that there is sufficient time to have the records up to date and to properly convene the meeting, I have extended the agreed timing of the meeting from 4 weeks to six (6) weeks. This allows the meeting to be called within 3 weeks and the records to be ready by the meeting in 6 weeks.

On the basis of the undertaking given by Maselli and its acceptance by the applicant, I have made an order incorporating the undertaking but with an extension of time to ensure it is complied with. The parties cannot now resile from the undertakings given – any failure to comply with the order can be prosecuted in the courts under the provisions of section 235 of the Act for which a maximum penalty of 400 penalty points ( in excess of $28,000) applies.



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