River Mews [2000] QBCCMCmr 66 (11 February 2000)

C G YOUNGREFERENCE: 0061-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27510
Name of Scheme:	River Mews
Address of Scheme:	Station Road, Lawnton Qld 4501

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

I hereby order that this order is in replacement of Order 0061-2000 dated 11 February 2000.

I hereby order that –

1.	Beverly Joan McKinnon of McKinnon Body Corporate Administration is appointed as administrator to call, hold and chair a general meeting (“the meeting”) of “River Mews” within three (3) months of the date of this order.
2.	The administrator shall hold appointment for the period beginning from the date of this order until the close of the meeting ordered, or three (3) months, whichever is the sooner.

I further order –

3.	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.

(1)	The nomination and election procedures for the election of committee members shall be in the same manner as provided for in sections 15 and 16 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

(2)

Prior to issuing the notice of meeting, the administrator must give at least two (2) weeks written notice to each person whose name appears on the roll as the owner of a lot in the scheme, inviting them to submit motions for inclusion in the agenda for the meeting. The administrator must enclose a copy of this order with the notice.

(3)	The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 40 and 43 of the Accommodation Module, and all other provisions relating to meetings under Part 4 of the Accommodation Module.

(4)	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 meeting shall be deemed to be the First Annual General Meeting of the scheme.Bribie Island Body Corporate Management Servicesof PO Box 16, Bribie Island Qld 4507three (3) monthstwenty one (21) days2nn

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0061-2000

“River Mews” CTS 27510

These reasons replace the “Statement of Adjudicator’s Reasons for Decision – Ref 0061-2000” given as part of original Order 0061-2000 dated 11 February 2000. In the original order, errors occurred in the order itself, and in the accompanying reasons, in referring to the Body Corporate and Community Management Act (Standard Module) 1997 in certain parts when the correct reference should have been to the Body Corporate and Community Management Act (Accommodation Module) 1997. The final paragraph correctly referred to the latter as the adopted regulation module. The error is merely a typographical one that I have corrected in this replacement order. For clarity, I have reproduced the whole of the reasons again but with the correct references to the Accommodation Module.

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

That Beverly Joan McKinnon of McKinnon Body Corporate Administration convene, hold and preside at the first annual general meeting of the body corporate for River Mews Community Titles Scheme 27510.

Section 223(1) 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 adjudicator 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 Act (Accommodation Module) 1997 (“the Accommodation Module”) provides that the original owner must call and hold the first annual general meeting of the body corporate within one month after the first of the following to happen –

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.

Moreover the agenda for the meeting must include the items set out in section 60(3) of the Standard Module. If the original owner does not call and hold the first annual general meeting as required by the section, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first annual general meeting within a stated time (section 60(4)).

In the supporting grounds, the applicant states that two adjoining schemes, namely River Mews North CTS 20852 and River Mews South CTS 20807, registered on the 12 December 1988 and 12 April 1989 respectively, passed resolutions without dissent on 6 November 1999 to amalgamate.

The amalgamation of the schemes was recorded by the Registrar pursuant to section 84 of the Act on 28 January 2000. Upon amalgamation both of the original bodies corporate were dissolved (see section 85), which necessarily includes a dissolution of both committees.

As a newly established scheme, the body corporate is required to hold a first annual general meeting (see section 60 of the Accommodation Module) and deal with those matters set out in the statutory agenda. The legislation does not provide a means for owners to be able to call this meeting in the absence of a committee. This application seeks the appointment of an administrator with the power to both convene the meeting and to carry out limited committee duties to allow the body corporate to function.

In the circumstances, I am satisfied that an order should be made in terms of section 60(4) of the Accommodation Module as a practical measure in establishing a functioning body corporate. The appointment is necessary to authorise a person to call and hold the first annual general meeting of the scheme, and allow it to thereafter to administer itself in accordance with the legislation.xxxxxxxx2nn