Lyndon Lodge [2001] QBCCMCmr 52 (6 February 2001)

RA MeekREFERENCE: 0045-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11617
Name of Scheme:	Lyndon Lodge
Address of Scheme:	29 Shamrock Street GORDON PARK QLD 4031

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

Walpro Pty Ltd, the owner of lots 1-6 inclusive

RA MeekI hereby order that I hereby order that -

1. McKinnon Body Corporate Administration of C/- PO Box 606, Bulimba Qld 4171 be appointed as administrator to call, hold and chair a general meeting ("the meeting") of "Lyndon Lodge" within one (1) month 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.

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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0045-2001

“Lyndon Lodge” CTS 11617

The applicant Walpro Pty Ltd, the owner of lot 1-6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That, Robyn Wellner, of McKinnon Body Corporate Administration be appointed to convene a general meeting of the body corporate.

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 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)).

The Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") at section 62 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)). This application has been made under this provision.

In the supporting grounds, the applicant states that the plan was registered in 1980, but that since that time there has not been a general meeting convened in accordance with the relevant legislation.

As the applicant is the sole owner of all of the lots, 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 decisions minutes. Specifically, I have not ordered that an election of the committee be held at the meeting, since given the current number of owners, the provisions of section 11 of the Standard Module apply and an election of committee members is not required since all owners are deemed by that provision to be members of the committee of the body corporate.

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 thereafter allow it to administer itself in accordance with the legislation.