York Place [2002] QBCCMCmr 298 (14 May 2002)

C G YOUNGREFERENCE: 0285-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11761
Name of Scheme:	York Place
Address of Scheme:	17 York Street INDOOROOPILLY QLD 4068

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

Kim JUNGSUN, as the owner of Lot 4,


C G YOUNGI hereby order that –

(1)	Michael Cohen of 2/75 Beatrice Terrace, Ascot Qld 4007 is appointed Administrator to call, hold and chair an annual general meeting of “York Place” CTS 11761 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.

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 (Standard 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 Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order. 2n

(5)	The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 42 and 45 of the Standard Module, and all other provisions relating to meetings under Part 4 of the Standard Module.

I further order that for the purposes of the Body Corporate and Community Management Act 1997 (“the Act”) and pursuant to section 229 of the Act, the financial year end date of the Body Corporate for “York Place” Community Titles Scheme 11761 shall be 31 October 2002, and thereafter each successive financial year for the body corporate shall commence on 1 November and terminate on 31 October.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0285-2002

“York Place” CTS 11761

The applicant, Kim Jungsun of Lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1. “That Michael Cohen of 2/75 Beatrice Terrace, Ascot 4007 be appointed to convene and conduct a General Meeting of York Place Body Corporate CTS 11761.

2. That the financial year of York Place Body Corporate be changed to 1^st November to 31^st October.”

JURISDICTION:
This is a dispute between an owner, Kim Jungsun the applicant, and the body corporate, the respondent, concerning a failure by the body corporate to call meetings in accordance with the legislation. It therefore comes within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

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 (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.

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 (Standard Module) Regulation 1997 (the “Standard Module”) 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.

APPLICATION AND SUBMISSIONS:
The applicant states that the body corporate has not operated within the requirements of the legislation since the last general meeting held on 17 November 2000; it does not have a currently elected committee to reconstitute itself. All of the owners, except for the owner of Lot 5 who is said to be overseas, affirm the application by attaching their signatures to the grounds of the application.

The applicant, supported by the majority of owners, also seeks to change the body corporate financial year-end to 31 October.

Michael Cohen has given written consent to the appointment. The appointment is limited to the calling and conduct of the meeting.


DETERMINATION:
In the circumstances I am satisfied that an order should be made in the terms sought, in order to put the body corporate onto a proper legal footing so that it may administer its affairs in accordance with the legislation.



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