Fairways Port Douglas [2001] QBCCMCmr 18 (15 January 2001)

C G YOUNGREFERENCE: 0545-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25616
Name of Scheme:	Fairways Port Douglas
Address of Scheme:	Cnr Old Port Road, Nautilus Street and Hutchings Road PORT DOUGLAS QLD 4872

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

Francis Alan WHITE and Maresa WHITE, as the co-owners of Lots 4 and 8,

I hereby order that –

(1)	N.Q. Body Corporate Management Pty Ltd, First Floor, Westcourt Manor, 254-256 Mulgrave Road, Cairns Qld 4870 (PO Box 5416) is appointed Administrator to call, hold and chair an annual general meeting (“the meeting”) of “Fairways Port Douglas” 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 appointment for the period beginning from the date of this order until the close of the meeting ordered to be held.
(3)	The Administrator shall be paid the fee of $700 by the body corporate for the establishment of the records of the body corporate and the convening and holding of the meeting described in (1) above.

I further order that within fourteen (14) days of the date of this order 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, or if there is no roll then to each person whose name should appear on the roll, at an address which is most likely to find them.

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 (“the Standard Module”).
(3)	The Administrator must give at least two (2) weeks written notice inviting owners to submit motions for inclusion on the agenda of the meeting.
(4)	The meeting must consider and determine the matters set out in section 62(3) of the Standard Module.
(5)	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.
(6)	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.

I further order that, for the purpose of determining the future financial year of the body corporate, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0545-2000

“Fairways Port Douglas” CTS 25616

The applicants, Francis and Maresa White of Lots 4 and 8, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) to appoint N.Q. Body Corporate Management Pty Ltd as administrator for the purposes of putting the body corporate on a proper legal footing by the establishment of the required records and the body corporate as an operating entity.

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 (see section 223(3)(p)) or 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.

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 administrator 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 (Standard Module) Regulation 1997 (the “Standard Module”) 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 of the Standard Module.

The applicants own two of the eight lots which constitute the scheme, however they submit that all of the other owners are in agreement with the appointment to establish an operating body corporate. The completion of the second development stage of the scheme will allow new Lots 8 to 19 to be sold. The applicants have recently provided a copy of a meeting held on 4 December 2000 to provide that the body corporate be managed by the nominee from 2001. I note that all owners were in agreement with this proposal. Without considering the validity of the meeting, the decision reflects the desire of the owners to establish a body corporate operating within the legislative requirements and I accept that as sufficient consent by owners to the nominee being appointed. It will be a matter for the owners themselves to determine the appointment of a Body Corporate Manager at the properly convened meeting.

On the advice that no proper First Annual General Meeting has been held, the nominated administrator is appointed to convene a meeting deemed to be that statutory meeting under the powers given me by section 62(4) of the Standard Module.

In the circumstances I am satisfied that an order should be made to appoint an administrator to call a meeting in terms of section 62 of the Standard Module, in order for the body corporate to be established on a proper legal footing in order to administer its affairs in accordance with the legislation. The appointment will cease at the close of the meeting.

I have also made provision for future annual general meetings to be determined relative to the date of the meeting ordered to be held, as provided for in the order.