Emerson [2001] QBCCMCmr 309 (8 June 2001)

P G DanielsREFERENCE: 0350-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20036
Name of Scheme:	Emerson
Address of Scheme:	21 Emerson Drive MORAYFIELD QLD 4506

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

Regina Barnewall and Freeman Strickland the co-owners of lot 1



P G DanielsI hereby order that Richard John Holmes (the appointee) of Level 1, 67 High Street Toowong is appointed to call, hold and chair a general meeting (the meeting) of the Body Corporate for Emerson community titles scheme 20036 within 3 months of the date of this order.


I further order that -

(1) at least 14 days notice of the meeting must be given to lot owners;

(2) notice of the meeting is to be given in accordance with section 42 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module);

(3) the agenda of the meeting must include the items set out in section 62(3) of the Standard Module, and the meeting may determine any other motion validly before it;

(4) 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 meeting shall be deemed to be the first annual general meeting of the scheme.Richard John HolmesLevel 1, 67 High Street Toowong3141yn

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0350-2001

“Emerson” CTS 20036

The applicants, Regina Barnewall and Freeman Strickland, the owners of lot 1, have sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

1.	Richard John Holmes of Barard Management Pty Ltd be appointed to hold a general meeting of the body corporate which will be deemed to be the First Annual General Meeting of the body corporate.
2.	The requirement to give 21 days written notice to hold the general meeting be waived.

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(4) 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 62 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard 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 62(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 62(4)).

In the supporting grounds, it is stated that the Body Corporate has held no meetings nor have records or minutes ever been kept. The owner of lot 2 has consented to the appointment of Mr Holmes.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 62(4) of the Standard Module. 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 proceed on a proper legal basis. I do not think it is appropriate to completely waive the requirement to give 21 days notice of the meeting. Richard John HolmesLevel 1, 67 High Street Toowong3141ynI have reduced the period for giving notice from 21 days to 14 days.