Pomphlett [2001] QBCCMCmr 349 (27 June 2001)

C G YOUNGREFERENCE: 0390-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8399
Name of Scheme:	Pomphlett
Address of Scheme:	20 Ilumba Street BUDDINA QLD 4574

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Barry John FRASER and Carol Gale FRASER, as the co-owners of both Lots 1 and 2,

C G YOUNGI hereby order that-

1.	Body Corporate Professionals of Suite 8 “St Cirino”, 137 Brisbane Road, (corner Elanora Avenue, (PO Box 153), Mooloolaba Qld 4557, is appointed administrator to call, hold and chair a general meeting (“the meeting”) of “Pomphlett within three (3) months of the date of this order.
2.	For the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers –

• To further delegate any of these powers to another person; or

• To incur expenditure apart from that necessary for the calling and holding of the meeting.

3. The administrator shall hold the appointment for the period beginning from the date of this order until the close of the meeting ordered.

I further order that –

1.	Under section 42(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the “Standard Module”) no notice of meeting need be given.

2.	The meeting must consider and determine the matters set out in section 62(3) of the Standard Module.

3.	The meeting may consider any other motion before it.

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 purposes 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. C G YOUNG 2n

2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0390-2001

“Pomphlett” CTS 8399

The applicants, Barry and Carol Fraser of both Lots 1 and 2, have authorised in writing Body Corporate Professionals to seek the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“Order to enable Body Corporate Professionals to convene the First Annual General Meeting of the body corporate and establish the body corporate records.”

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)).

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, the applicants state that no first annual general meeting was ever held and no body corporate records exist to evidence the body corporate ever functioning as such. The applicant owners wish to establish an operating body corporate administering itself in accordance with the legislative requirements, preparatory to a lot sale.

2yAs the applicants are the sole owners, notice of the ordered meeting may be dispensed with under the provisions of section 42(4) of the Standard Module. However the matters contained in section 62(3) need to be considered and the meeting minuted.

In the circumstances I am satisfied that an order should be made in the terms authorised by section 62(4) of the Standard Module.

The applicants have also sought a variation in the end of the financial year date to 31 October. This can only be done by application under section 229 of the Act. However, I am able to set the financial year relative to the date of the meeting to be held under this order which is convenient in allowing a full year to be considered and budgeted for, and I propose to so order. The applicants can make a separate application in the future to change this if they so wish. Accordingly, as the applicants are the sole owners, I am satisfied that it is appropriate for such an order to be made in these circumstances and that it be the end of the month preceding the month in which the ordered meeting is held. If the meeting is held in July then 30 June will be the financial year-end date.