Talbot Manor [2001] QBCCMCmr 127 (1 March 2001)

RA MeekREFERENCE: 0046-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8610
Name of Scheme:	Talbot Manor
Address of Scheme:	18-22 Albert Street EAGLEBY QLD 4207

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

Albert John Harlen, the co-owner of lot 10


RA MeekI hereby order that Skehan Body Corporate Management (the appointee) of Suite 13, 1344 Gympie Road, Aspley is appointed to call, hold and chair a general meeting (the meeting) of Talbot Manor 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 -

1. to further delegate any of those powers, authorities, duties and functions to another; or

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

3. 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.

I further order that the meeting to be convened in accordance with the terms of this order shall be deemed to be an annual general meeting of this body corporate, and the meeting will consider all motions necessary to be included on the agenda of an AGM.Skehan Body Corporate ManagementSuite 13, 1344 Gympie Road, Aspleythree (3)7 y nnScheme
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0046-2001

“Talbot Manor” CTS 8610

The applicant, 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 Skehan Body Corporate Managers of ... be engaged by Talbot Manor Body Corporate to arrange and conduct the AGM on behalf of the body corporate and that the date for the AGM be extended beyond the allowable 3 months from the end of the Body Corporate’s financial year 30/11/2000 to enable correct administration procedure to be followed in regard to notices for AGM, motions, nominations, voting papers, proxies etc to be forwarded to owners of Talbot Manor.

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 do not intend to restate the applicant’s supporting grounds. A copy of the application was forwarded to all owners in consequence of the submission process. I am satisfied that the material advised in the grounds is accurate, or at least accurately reflects the position of this body corporate at this time.

Three submissions have been received from owners in response to the application. One submission is implicitly supportive of it. Another is explicitly supportive of the application, and the third is critical of the motivation of the applicant, stating that –

Mr Harlen’s one man coup would be a concern to me if the Department allows it to succeed.

The written then requests that the commissioner appoint “an unbiased administrator to conduct the affairs of Talbot Manor until the present crisis is resolved” including to collect all outstanding levies, hold an AGM and elect a committee.

Whilst I note the concerns expressed by this owner, I consider that the owner misunderstands the purpose and nature of the appointment proposed. The proposed appointment is not of Mr Harlen, but rather a body corporate manager. Secondly, the appointee is not appointed body corporate manager for the scheme, but is simply appointed to convene a meeting so as to enable this body corporate to commence to operate in accordance with the legislation following its recent upheavals. At the meeting proposed, all owners will be given the opportunity to submit agenda items and to nominate for the committee. The appointment of a body corporate manager will be a matter for the body corporate in general meeting to determine.

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. I have ordered in accordance with the terms sought. Skehan Body Corporate ManagementSuite 13, 1344 Gympie Road, Aspleythree (3)7 y nnScheme