Weinam Lodge [2001] QBCCMCmr 288 (29 May 2001)

P J HANLYREFERENCE: 0223-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27095
Name of Scheme:	Weinam Lodge
Address of Scheme:	Corner Hamilton and Weinam Streets REDLAND BAY QLD 4165

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

MacTaggart Property Developments Pty Ltd (formerly Northern Territory Game Meat Export Pty Ltd) the owner of lots 2 and 4


I hereby order that –

(1)	Benita Williams of BUGT Management (Gold Coast) Pty Ltd, PO Box 7674, Gold Coast Mail Centre Qld 9726 is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of “Weinam Lodge” 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 of the close of the meeting ordered.

I further order that within seven (7) 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 (“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 15 and 16 of the Body Corporate and Community Management (Accommodation 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 40 and 43 of the Accommodation Module and all other provisions relating to meetings under Part 4 of the Accommodation 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 0223-2001

“Weinam Lodge” CTS 27095

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

To appoint BUGT Management (Gold Coast) Pty Ltd as administrator to convene a general meeting of owners in the absence of a nominated first annual general meeting having been convened and a subsequent annual general meeting having been convened within the timeframe prescribed by the Body Corporate and Community Management Act 1997.

Section 223(1) of the Act 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 (Accommodation Module) Regulation 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 Accommodation 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 62(4)).

In the supporting grounds, the applicant states that the scheme registered on 19 July 1999, and an inaugural extraordinary general meeting was held on 8 November 1999. The applicant further states that although this meeting considered a number of motions, which are required to be considered at a first annual general meeting, the meeting was not specifically called as a first annual general meeting. The applicant notes that no further meetings have been held, and a search of the books and records of the body corporate does not show any notice inviting nominations having been forwarded within the prescribed time for the 2000 annual general meeting. The applicant therefore requests that an administrator be appointed to place the body corporate on a proper legal footing.

The body corporate manager and the other two owners were invited to respond to the application.

Submissions were received from both owners and from the body corporate manager. The body corporate manager stated that nominations for the committee were sent out, but only two nominations were received. The body corporate manager further stated that a previous attempt to hold an annual general meeting did not come to fruition as the applicant requested that the meeting be postponed until legal issues involving the other two owners had been resolved.

Both of the other owners complained of their treatment by the applicant.

It is apparent that there are difficulties within this body corporate. However, in order for those difficulties to be sorted out, I am of the view that a meeting must be called and held, so that all owners may have the opportunity to place appropriate motions on the agenda of the meeting, as well as dealing with the statutory motions required for an annual general meeting. I do not consider that the annual general meeting should be classified as a first annual general meeting, because the inaugural extraordinary general meeting was in fact held within the time contemplated by section 60(2) of the Accommodation Module, and the agenda of the meeting included all of the items specified in section 60(3) of the Accommodation Module. I therefore consider that that meeting should be regarded as the first annual general meeting. This will not affect the financial year for the scheme, which is defined in Schedule 4 of the Act.

I note also that there are other issues, which should be determined at the meeting, in respect of the management and letting agreements, and the agreement entered into with the present body corporate manager. The present application does not seek orders in relation to these issues, but of course an aggrieved party may lodge his or her own application to resolve a dispute if the issues are not satisfactorily resolved at the meeting.

In the circumstances, I am satisfied that an order should be made in terms authorised by the Act and the Accommodation Module. The appointment is necessary to authorise a person to call and hold an annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis. The person appointed has consented in writing to her appointment. The present body corporate manager advised me that he did not wish to be appointed to call the meeting, in light of the applicant’s actions to date. Benita WilliamsBUGT Management (Gold Coast) Pty Ltd, PO Box 7674, Gold Coast Mail Centre Qld 97263212nn