Dromana [2000] QBCCMCmr 682 (29 December 2000)

RA MeekREFERENCE: 0528-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11492
Name of Scheme:	Dromana
Address of Scheme:	52 Oceanic Drive Mermaid Waters, GOLD COAST QLD 4218

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

Yvonne Sylvia Drake, the owner of lot 6


RA MeekI hereby order that The Body Corporate Headquarters (the appointee) 1/7 Straithard Road, Bundall is appointed to call, hold and chair a general meeting (the meeting) of Dromana 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 the executive members of the committee and the ordinary members of the committee, if any, who shall hold such positions, subject to section 25 of the Body Corporate and Community Management (Standard Module) (the standard module), until the next annual general meeting is held.

I further order that, for the purposes of convening, holding and chairing the meeting, the appointee shall have all the powers, authorities, duties and functions of the chairperson, secretary and treasurer of the body corporate, with the exception of the following powers -

a) to further delegate any of those powers, authorities, duties and functions to another; or

b) to make any decision on a restricted matter within the meaning of section 26 of the standard module; or

c) to incur expenditure, in respect of a single project, beyond the relevant limit for committee spending.

I further order that within seven (7) days of the appointee receiving a copy of this order, the appointee must give a copy of this order to each person whose name appears on the roll as the owner of a lot included in the scheme (lot owners).

I further order that lot owners shall have the right to submit to the appointee, motions for inclusion on the agenda for the meeting; and

a) if the lot owner is an individual - to nominate the lot owner or another individual for election as a member of the committee; and

b) if the lot owner is not an individual - to nominate an individual for election as a member of the committee;

Provided that

a) the motions and / or nominations are received by the appointee within twenty-one (21) days from the date of this order; and

b) the motions and / or nominations are otherwise in accordance with the requirements of the standard module;

then the appointee shall include the motions on the agenda of the meeting, or nominations on the ballot for election as members of the committee.

I further order that the appointee shall not give notice of the meeting until after the expiration of twenty-one (21) days from the date of this order.

I further order that -

a) at least fourteen (14) days notice of the meeting must be given to lot owners,

b) notice of the meeting is to be given in accordance with section 42 of the standard module;

c) the agenda of the meeting must include the items set out in section 45(2) of the standard module, and the meeting may determine any other motion validly before it;

d) the procedure for the conduct of the election for the committee at the meeting shall be by open ballot in accordance with section 17 of the standard module; and

e) except as provided for in this order, the meeting and all related matters must be conducted in accordance with the standard module.

I further order that the appointee shall hold the appointment for the period beginning from the date of this order until the completion of the meeting.The Body Corporate Headquarters1/7 Straithard Road, Bundallthree (3)twenty-one (21)twenty-one (21)fourteen (14)y nnScheme
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0528-2000

“Dromana” CTS 11492

The applicant, Yvonne Sylvia Drake, the owner of lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

... to appoint G Perkins of “The Body Corporate Headquarters” to convene a general meeting of the body corporate.

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)).

The Body Corporate and Community Management Act (Standard Module) (the Standard Module) section 60 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). Moreover, the agenda for an annual general meeting must include the items set out in sections 45(2) and (3) of the Standard Module.

I have considered the applicant’s grounds and generally they outline a case for the appointment of a person at least to convene a general meeting of the body corporate. The applicant’s grounds do not specifically indicate that the body corporate is not operating; they merely suggest this is the case, and that certain matters (ie. insurance and maintenance) are in urgent need of attention.

I note that the applicant states at one point “I understand that the Commissioner for Body Corporate and Community Management has the power to appoint a professional Body Corporate Manager to take over in circumstances like this”. Whilst an adjudicator would have power in exceptional circumstances to appoint a manager on a permanent basis, it is not the usual practice to do so. Rather, the practice adopted, if circumstances require it, is to appoint a nominated person to convene a general meeting of the body corporate. At this meeting, it is for the members of the body corporate to determine the future direction of that body corporate by considering motions. All owners will be entitled by this order to submit motions for inclusion on the agenda of the meeting. The meeting will then determine which motions are carried.

It is clear that 5 of the 6 owners in the scheme support the appointment of a body corporate manager. However there is some division as to which manager to appoint. The meeting to be convened will allow the members of the body corporate to resolve this issue.

This order is not the appointment of The Body Corporate Headquarters as the permanent manager. Rather it is an appointment to convene one (1) meeting. As I said above, it is for the members of the body corporate at that meeting to determine which manager to appoint on a permanent basis.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold a general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.The Body Corporate Headquarters1/7 Straithard Road, Bundallthree (3)twenty-one (21)twenty-one (21)fourteen (14)y nnScheme