Phoenix Court [2002] QBCCMCmr 20 (18 January 2002)

RA MeekREFERENCE: 0020-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13562
Name of Scheme:	Phoenix Court
Address of Scheme:	10 Kate Street WOODY POINT

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Phoenix Court

RA MeekRA MeekI hereby order that pursuant to section 276(9) of the Body Corporate and Community Management Act 1997, the financial year for this scheme is 1 November to 31 December each year.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0020-2002

“Phoenix Court” CTS 13562

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

That the adjudicator establish a date for the close off of the body corporate’s financial year.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that –

... there are no records of the first AGM. The building was built in 1974 and the first minutes we have are dated 11^th February 2001.

The application seeks the establishment of a financial year, in contrast to “a change of the body corporate’s financial year and of the dates when later financial years begin” (see section 229 of the Act).

Section 276 of the Act provides as follows –

276 Existing plan
(1) On the commencement, a community titles scheme (the “new scheme”) is established for the existing plan.
(2) The new scheme is a basic scheme.
(3) Each lot in the existing plan becomes a lot included in the new scheme.

...

(9) The financial year for the new scheme is, unless the first annual general meeting has not been held for the existing plan—
(a) each year ending on the last day of the month containing the anniversary of the first annual general meeting held for the existing plan; or
(b) if a referee under the 1980 Act has fixed a date to be taken to be the anniversary of the first annual general meeting of the body corporate—each year ending on the last day of the month
containing the date fixed by the referee. ...

The minutes of an AGM held on 29 January 1996 have been provided to me as part of this application. These minutes refer to a previous AGM held on 12/12/86. The minutes do not refer to any previous meeting, but it seems apparent that the meeting was not the first AGM of this body corporate. Title records indicate that the titles for this scheme were “created” on 22/10/74.

The situation where the date of the first AGM is not known, but it is clear that there has in fact been a first AGM is not dealt with in the Act. Rather it deals with two situations; where an AGM has been held, and the date is known, and where no AGM has been held.

In the latter situation, the Act presumes that “for determining the new scheme’s financial year, the establishment of the scheme is taken to have happened when the existing plan was registered” (see section 276(10)).

Given this, I consider it safe to assume that the plan of subdivision was registered shortly before the titles for the lots issued, namely in October 1974. In the circumstances, I consider that section 276(9) applies and that the financial year for this scheme is 1 November to 31 October each year.

Consequently, the financial year end date of this body corporate is 31 October, and that the AGM for the scheme must be held within 3 months of this date each year (see section 60 of the standard module).
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