Ogden Court [2000] QBCCMCmr 630 (5 December 2000)

RA MeekREFERENCE: 0475-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13643
Name of Scheme:	Ogden Court
Address of Scheme:	11 Lord Street KIRRA QLD 4225

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

Corporate


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 Ogden Court CTS 13643.

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 Squires Book Keeping Service (C/- Mr Arthur Metcalf of Unit 6, 3 Rutledge Street, Kirra).

I further order that –

(1)	Squires Book Keeping Service (C/- Mr Arthur Metcalf of Unit 6, 3 Rutledge Street, Kirra) is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of “Ogden Court” 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 three (3) month period of appointment, 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 0475-2000

“Ogden Court” CTS 13643

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

That voting papers, annual accounts and other documents be issued forthwith and AGM held as soon as legal afterwards.
That body corporate manager provide at AGM a statement of accounts from 1 May 2000 until 1 week before AGM to include bank balance and debtors and creditors details.

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)).

In the supporting grounds, the applicant states that whilst the financial year ended 30 April, the AGM for this year has still not be held due to the inaction of the appointed body corporate manager. There has been a committee meeting in the meantime which authorised the making of an application to this office.

Submissions were sought, regarding this application, from the body corporate manager, AM Strata Administration. To date, no submission has been forthcoming to explain the delay in convening the AGM for this body corporate. I have therefore assumed that the facts as set out in the application are not opposed.

Since the making of the application, the secretary of the body corporate has written advising of the intention of the body corporate to convene an EGM to consider the appointment of Squires Bookkeeping Service as manager for a period, in preference to the current manager. The secretary indicates that there is little doubt that the motion will be approved.

I am aware of a recent order made in similar circumstances in respect of the body corporate, Surf Breeze. The circumstances then affecting that body corporate are very similar to that of this body corporate. I have noted the terms of the order made in respect of that body corporate.

In respect of this body corporate, as the AGM is now overdue by in excess of 7 months, I expect that levy notices have not been sent, or contributions received. This body corporate will, if not already, be able to operate if levies have not been issued or paid. I quote from the reasons in order 0474-2000 –

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.

I consider the above reasoning is appropriate to the terms of the present order also. I propose a similarly worded order appointing Squires Bookkeeping Service as administrator to convene the AGM of this body corporate. I have ordered accordingly.
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