Jilgar Court [2002] QBCCMCmr 348 (31 May 2002)

DJ ReardonREFERENCE: 0142-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14461
Name of Scheme:	Jilgar Court
Address of Scheme:	70 Liverpool Road CLAYFIELD QLD 4011

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

Marie Burnett, the Owner of Lot 7 and Glenn Wilks, the Owner of Lot 8

I hereby order that –

1.	Peter Veal of R. Jackson Pty Ltd, is appointed as Administrator to call, hold and chair an annual general meeting (“the meeting”) of the “Jilgar Court” 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 purposes 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 Administrator must within 7 days, give at least 21 days written notice inviting owners to submit motions for inclusion on the agenda for the meeting, and inviting owners to submit nominations for election of committee members.
3.	The agenda for the meeting must include all matters provided in sections 45(2), (3) and (4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”).
4.	The meeting shall otherwise be called and held as an annual general meeting in accordance with the Act and the Standard Module.
5.	The Administrator must not give notice of the meeting to owners earlier than 21 days from the date of this order.

I further order that for the purpose of determining future financial years of the Body Corporate, the end of financial year shall be the last day of the month immediately preceeding the month in which the anniversary of the meeting authorised by this order is held.

I further order that the application for an interim order “that the motion appointing Mr Barry Williams be appointed consultant to prepare financial report and agenda for Jilgar Court CMS 14461 Annual General Meeting to be held on 8 April 2002 was at all times void” is dismissed.

I further order that the application for an interim order “that an appointment of a workplace health and safety officer should be in accordance/compliance with the provisions of the Body Corporate and Community Management (Standard Module) Regulation 1997” is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0142-2002

“Jilgar Court” CMS 14461

1.	Orders Sought

The applicants, the Owners of Lots 7 and 8, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“An order for an administrator to conduct the affairs of Jilgar Court Body Corporate CMS 14461”

The applicants have also sought the following interim orders, quote-

“An interim order that the motion appointing Mr Barry Williams be appointed consultant to prepare financial report and agenda for Jilgar Court CMS 14461 Annual General Meeting to be held on 8 April 2002 was at all times void

An order that an appointment of a workplace health and safety officer should be in accordance/compliance with the provisions of the Body Corporate and Community Management (Standard 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 (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)).

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

Application, submissions and meeting

This application was made on 4 March 2002. Soon after receipt of the application, the Commissioner for Body Corporate and Community Management requested that the applicants provide further information and details regarding the application. On 27 March 2002, the Commissioner for Body Corporate and Community Management invited the Committee for the Body Corporate to make a written submission about the application.

The Secretary for the Body Corporate made a written submission about the application, to which the applicants have made a written response.

In order to clarify issues regarding the application, on 13 May 2002 I conducted a meeting with the applicants and the secretary for the scheme. While I do not intend to describe in detail the discussion that took place at the meeting, I do wish to restate some particularly pertinent points.

I understand from the parties at the meeting that the last annual general meeting for the scheme was held in April 2001. Further, although an annual general meeting had been scheduled for April 2002, it did not proceed. I also understand that Mr Williams who is the subject of one of the interim orders sought in this application has no current connection with the scheme, and a workplace health and safety officer has not been appointed.

In terms of the orders sought in the application, the parties present at the meeting were agreeable for Mr Veal to be appointed to convene an annual general meeting for the Body Corporate. It also appeared to me from discussions at the meeting that given current circumstances, it was not necessary for me to make orders regarding Mr William’s purported appointment, or the appointment of a workplace health and safety officer.

Following the meeting of 13 May 2002, I wrote to the Owners of Lots 1,2,4,5 and 6 (lots that were not represented to date in the application and submission process), and indicated that I was considering making an order appointing Mr Veal as Administrator to convene a general meeting of the Body Corporate for “Jilgar Court”. I invited the owners to make a written submission about the matter before 30 May 2002. On 30 May 2002, I received a submission in support of the application for the appointment of an administrator from the Owner of Lot 1.

In her submission, the Owner of Lot 1 also raises an issue concerning repairs to a water pipe. This matter was also discussed in a general sense at the meeting of 13 May 2002. As the applicants have not sought an order relating to this issue, I do not consider that I am in a position to determine the matter. Rather, if the repairs to the water pipe are an issue, an interested party could make a formal dispute resolution application to this Office for determination. Such an application should be accompanied by full details of the utility infrastructure in question, and the work carried out. After allowing affected parties to make a written submission about the application, the matter would be investigated and resolved. In the meantime, interested parties could telephone the Information Service of the Commissioner’s Office on 1800 060 119, for information on the Act, and the regulation modules relating to repairs and maintenance.

In the circumstances I am satisfied that it is reasonable and necessary for me to appoint Mr Veal as Administrator for the purpose of convening an annual general meeting for the scheme. Parties should be aware that this meeting will be an opportunity to present motions to the Body Corporate for consideration, and will be an opportunity make nominations for committee positions. I have also put in place an order specifying the financial year for the Body Corporate.

From the meeting, I understand that the Secretary has possession of the records of the Body Corporate. I anticipate that the Administrator will require access to these documents to carry out this order. While I do not believe it is necessary to make an order regarding possession of the Body Corporate records, I do wish to state that the secretary should allow the Administrator all reasonable access to the records for the purposes of carrying out his functions under this order.