Highpoint Lodge [2002] QBCCMCmr 18 (16 January 2002)

RA MeekREFERENCE: 0021-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12394
Name of Scheme:	Highpoint Lodge
Address of Scheme:	304 Harcourt Street NEW FARM QLD 4005

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

Elizabeth Anne Davies, the owner of lot 11


RA MeekI hereby order that Skehan Body Corporate Management (the appointee) Suite 17, Aspley Fountain Shopping Centre, 1344 Gympie Road, Aspley is appointed to call, hold and chair a general meeting (the meeting) of Highpoint 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 the executive members of the committee and the ordinary members of the committee, if any, who shall hold such positions, subject to section 25 of the Body Corporate and Community Management (Standard Module) (the standard module), until the next annual general meeting is held.

I further order that, for the purposes of convening, holding and chairing the meeting, the appointee shall have all the powers, authorities, duties and functions of the chairperson, secretary and treasurer of the body corporate, with the exception of the following powers -

a) to further delegate any of those powers, authorities, duties and functions to another; or

b) to make any decision on a restricted matter within the meaning of section 26 of the standard module; or

c) to incur expenditure, in respect of a single project, beyond the relevant limit for committee spending.

I further order that within seven (7) days of the appointee receiving a copy of this order, the appointee must give a copy of this order to each person whose name appears on the roll as the owner of a lot included in the scheme (lot owners).

I further order that lot owners shall have the right to submit to the appointee, motions for inclusion on the agenda for the meeting; and

a) if the lot owner is an individual - to nominate the lot owner or another individual for election as a member of the committee; and

b) if the lot owner is not an individual - to nominate an individual for election as a member of the committee;

Provided that

a) the motions and / or nominations are received by the appointee within fourteen (14) days from the date of this order; and

b) the motions and / or nominations are otherwise in accordance with the requirements of the standard module;

then the appointee shall include the motions on the agenda of the meeting, or nominations on the ballot for election as members of the committee.

I further order that the appointee shall not give notice of the meeting until after the expiration of twenty-one (21) days from the date of this order.

I further order that -

a) at least twenty-one (21) days notice of the meeting must be given to lot owners,

b) notice of the meeting is to be given in accordance with section 42 of the standard module;

c) the agenda of the meeting must include the items set out in section 45(2) of the standard module, and the meeting may determine any other motion validly before it;

d) the procedure for the conduct of the election for the committee at the meeting shall be by open ballot in accordance with section 17 of the standard module; and

e) 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 appointee shall hold the appointment for the period beginning from the date of this order until the completion of the meeting.

I further order that until the completion of the meeting, the appointee shall have the right sign cheques on behalf of the body corporate to pay all usual invoices received in the name of the body corporate, and which are not of an exceptional nature, which are due and payable before the date of the meeting, provided that each cheque written in payment of a body corporate invoice shall be countersigned by an owner of a lot in the scheme.

I further order that the appointee is hereby authorised to complete and sign on behalf of the body corporate all section 162 information statements which are requested between the date of this order until the completion of the meeting.Skehan Body Corporate Management three (3)fourteen (14)twenty-one (21)twenty-one (21)y nnScheme
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0021-2002

“Highpoint Lodge” CTS 12394

The applicant, Elizabeth Anne Davies, the owner of lot 11, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

An order to have AGM (10 Dec 2001) declared invalid with regard to AGM legislature requirements; to have new date set for AGM / general meeting; to have Skehan Body Corporate Managers appointed as administrators to set the books of the body corporate in order as well as conduct the next meeting at a date to be set by the commissioner.

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 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)).

The Body Corporate and Community Management Act (Standard Module) (the Standard Module) section 60 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(2) and (3) of the Standard Module.
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In the supporting grounds, the applicant states that the AGM originally called for December was “cancelled” for a number of stated reasons. The applicant has sought the consents of other owners to the contents of the application, and as part of the application, I have been provided with the written consent of 12 of the 18 owners; a two thirds majority of all owners. I also note there is one owner who disagrees with the proposed order.

In the circumstances, I consider that the consents are sufficient to evidence that the majority of owners are supportive of the application and its contents. It is clear that this body corporate will need to convene a meeting in order to re-constitute itself. I have provided sufficient safeguards in the order to protect the interests of all owners. This includes the opportunity to submit agenda items and to nominate for the committee, proper notice periods, and the like.

I have further provided that the appointee has power to co-sign cheques on behalf of the body corporate and further to sign section 163 information statements. Based on the information provided this will be necessary in the interim before the meeting proceeds.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold a general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis. I have not however invalidated the original AGM as requested, for several reasons. Firstly I do not have the benefit of submissions on this aspect, and therefore would be making the order purely on the statements of the applicant. I do not consider the consents provided evidence of the alleged invalidity of the meeting. Further, it is really academic in my view whether this meeting is invalidated. The effect of this order is that a new meeting be convened. This meeting will have the power to rectify or attend to any matter arising out of any previous meeting. In the circumstances, the body corporate might pass a resolution that the previous meeting was invalid and that any resolutions purportedly carried at that meeting (I am not certain what stage the meeting got to) are of no effect. Skehan Body Corporate Management three (3)fourteen (14)twenty-one (21)twenty-one (21)y nnScheme