Island Maison [2002] QBCCMCmr 206 (18 April 2002)

C G YOUNGREFERENCE: 0223-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29297
Name of Scheme:	Island Maison
Address of Scheme:	10 - 12 Darrambal Street CHEVRON ISLAND QLD 4217

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

Robert SUKIC, nominee for Island Maison Pty Ltd, the owner of Lots 1 to 4, 6 to 8, and 12,

I hereby order that –

(1)	Stewart Silver King & Burns, 116-118 Bundall Road, Bundall Qld 4216 (PO Box 8319 Gold Coast Mail Centre Qld 9726) is appointed Administrator to call and chair an annual general meeting of “Island Maison” 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 committee members.
(2)	The Administrator shall hold appointment for the period beginning from the date of this order until the close of the meeting ordered to be held.

I further order that within fourteen (14) days of the date of this order 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, or if there is no roll then to each person whose name should appear on the roll, at an address which is most likely to find them.

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)	The nomination and election procedures for the election of committee members shall be in the same manner as provided for in sections 14 and 15 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.
(3)	The Administrator must give at least two (2) weeks written notice inviting owners to submit motions for inclusion on the agenda of the meeting.
(4)	The meeting must consider and determine the matters set out in section 60(3) of the Accommodation Module.
(5)	The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 40 and 43 of the Accommodation Module, and all other provisions relating to meetings under Part 4 of the Accommodation Module.
(6)	The Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.

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 0223-2002

“Island Maison” CMS 29297

The applicant, Robert (Bob) Sukic of Lots 1 to 4, 4 to 8, and 12, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) for the appointment of Stewart Silver King & Burns, a Body Corporate Manager, to convene a deemed First Annual General Meeting.

APPLICABLE LEGISLATION:

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 (see section 223(3)(p)) or 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.

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)).

Section 60 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 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 of the Standard Module.

The applicant company, Island Maison Pty Ltd, is the developer and original owner for the scheme. It is still the owner of 8 of the 12 lots which comprise the scheme.

The scheme was established on 17 May 2001 and under section 60(2) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (“the Accommodation Module”) the statutory First Annual General Meeting of the body corporate should have been called and held by 17 December 2001. A Body Corporate Manager had been engaged by the applicant for this purpose however, for whatever reason, the meeting was not called as required.

The applicant has applied for a professional Body Corporate Manager to be appointed for the purposes only of calling and holding a meeting to be deemed to be the First Annual General Meeting under the provisions of section 60(4) of the Accommodation Module.

I am satisfied that, (1) the applicant is attempting to remedy the situation of the meeting not being held as required by the legislation, and (2) the applicant holds a substantial majority of votes.

In the circumstances, I am satisfied that an order should be made to appoint an administrator to call a meeting in terms of section 60 of the Accommodation Module, so that the body corporate can be established on a proper legal footing to administer its affairs in accordance with the legislation. The appointment will cease at the close of the meeting.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.