Island Maison [2002] QBCCMCmr 296 (14 May 2002)

P J HANLYREFERENCE: 0250-2002

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 Island Maison Pty Ltd, the owner of lots 1,2,3,4,6,7,8 and 12

I hereby order that –

(1)	Robert Sukic of C/- Stewart Silver King & Burns, PO Box 8139, Gold Coast Mail Centre Q 9726 is appointed as administrator to call, hold and chair an annual general meeting (“the 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 the appointment for the period beginning from the date of this order until of the close of the meeting ordered.

I further order that within seven (7) 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 (“lot owners”).
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 15 and 16 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

(3)	The administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting.

(4)	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.

(5)	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 0250-2002

“Island Maison” CTS 29297

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

In accordance with the provisions of section 223(3)(p) of the Body Corporate and Community Management Act 1997 an order is sought from the adjudicator to authorise Mr Bob Sukic (Company Nominee of Island Maison Pty Ltd) to issue notice of first annual general meeting in accordance with section 60(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

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)). 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)).

Section 60 of the Body Corporate and Community Management (Accommodation Module) (the Accommodation Module) 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 60(3) of the Accommodation 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)).

In the supporting grounds, the applicant states that the notice of first annual general meeting should have been issued within one month after 6 months had elapsed from the establishment of the scheme. In the absence of such action, the applicant seeks an order. The applicant has also provided me with copies of supporting documentation, including minutes of the first extraordinary general meeting held on 17 May 2001, and a letter of resignation dated 26 March 2002 from Ricmar (Qld) Pty Ltd, the body corporate manager appointed at the extraordinary general meeting.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 60(4) of the Accommodation Module. The appointment is necessary to authorise a person to call and hold the first annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.Robert SukicC/- Stewart Silver King & Burns, PO Box 8139, Gold Coast Mail Centre Q 97263212nn