Ocean Haven [2002] QBCCMCmr 203 (17 April 2002)

DJ REARDONREFERENCE: 0200-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4121
Name of Scheme:	Ocean Haven
Address of Scheme:	20 Oxley Way WOORIM QLD 4507

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

Nicola Lombardi, the Owner of Lot 1

DJ REARDONI hereby order that-

1. DJ ReardonGS McGarry, of Bribie Island Body Corporate Management Services of 5 McMahon Street, Bribie Island Queensland, is appointed as Administrator to call, hold and chair an annual general meeting (“the meeting”) of the “Ocean Haven” body corporate in accordance with this order and within 3 months of the date of this order.

2.	The Administrator shall hold the appointment from the period beginning on the date of this order until the close of the meeting ordered.

I further order that within 7 days the Administrator must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme.

I further order that –

1.	For the purpose of calling, holding and chairing the meeting, the Administrator shall have all the powers of the chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers-
•	To further delegate any of those powers to another person; or
•	To incur any expenditure, apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

2.	At the meeting, the owners must decide between themselves who is to hold positions on the committee in accordance with section 11 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”).

3.	Upon receipt of this order the Administrator must give at least 2 weeks written notice inviting owners to submit motions for inclusion on the agenda for the meeting.

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

5.	The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act and the Standard Module.

6.	The administrator must not give notice of the meeting to owners earlier than 3 weeks from the date of this order.

I further order that the meeting shall be deemed to be the First Annual General Meeting for the scheme.

I further order that for the purpose of determining future financial years of the body corporate, the end of the financial shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order is held.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0200-2002

“Ocean Haven” CTS 4121

The applicant, the Owner of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“That Mr G S McGarry of Bribie Island Body Corporate Management Services, PO Box 747, Bribie Island, be appointed to convene and conduct the first Annual General Meeting within a stated time.”

The community management statement for the “Ocean Haven” community titles scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

Section 223(1) of the Act 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)). In addition, 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)).

In the supporting grounds of the application, the applicant indicates that although the scheme was created in 1991, “the current owners can find no records to indicate that the first Annual General Meeting has been held”. As a result the applicant is seeking an order to call the first annual general meeting of the scheme, and to establish the financial year for the scheme.

At the time the “Ocean Haven” scheme was established, the Building Units and Group Titles Act 1980 (“the BUGT Act”) was in operation. Section 29(1) of the BUGT Act provided the following:

First annual general meeting of body corporate

29. (1) Within 3 months after the registration of the plan, the original

proprietor, whether or not the original proprietor is a proprietor at the time

the original proprietor does so, shall, in accordance with schedule 2, part 1

convene a meeting of the body corporate which shall be held within that

period.

The current owners of both lots in the “Ocean Haven” community titles scheme have signed the application form. In the circumstances, I am satisfied that the current owners have been unable to locate evidence of a first annual general meeting as required by the above section of the BUGT Act. As such, I am also satisfied that the appointment requested by the applicant is necessary to authorise a person to call and hold the first annual general meeting of the body corporate, and allow it to thereafter proceed on a proper legal basis.

In the application, the applicant also raises the issue of the financial year for the scheme. I intend to order that the financial year for the scheme shall be the last day of the month, preceding the month in which the anniversary of the meeting is held.

As a final note, I would like to point out to owners that the Office of the Commissioner for Body Corporate and Community Management offers an Information Service for people involved with Queensland community titles schemes. The Information Service provides information in response to telephone and written enquiries about the Act and regulation modules, and has also produced a number of free publications on various aspects of community living. The Information Service can be contacted on (freecall) 1800 060 119.2n