Malathion [2002] QBCCMCmr 369 (12 June 2002)

P J HANLYREFERENCE: 0162-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5046
Name of Scheme:	Malathion
Address of Scheme:	9 Elwood Court BURLEIGH WATERS QLD 4220

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

Ronald John Rispen and Valerie May Rispen, the co-owners of lot 1


I hereby order that

(1)	Ronald John Rispen of 1/9 Elwood Court, Burleigh Waters Q 4220 is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of “Malathion” 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

(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 –

(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 administrator must give at least fourteen (14) days written notice inviting the owner of lot 2 to submit motions for inclusion on the agenda of the meeting.

(3)	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.

(4)	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 within 14 days of the date of this order the owner of lot 2, Patricia Dorothy Bray, shall hand to the administrator all body corporate books and records which may be in her possession.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0162-2002

“Malathion” CTS 5046

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

We are seeking a body corporate meeting with Mrs Bray, and a perusal of the books, accounts or relevant matters.

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 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(2) and (3) of the Standard Module.

In the supporting grounds, the applicants state that they tried to approach the respondent, Mrs Bray, with a view to arranging a body corporate meeting, but were allegedly told by Mrs Bray to leave her property and to stay away. The applicants are concerned that the property may not be properly insured.

Mrs Bray was invited to respond to the application, but no written submission was received. Mrs Bray did, however, advise a member of the Commissioner’s staff that she only has one book in relation to the body corporate from when the previous owner of lot 1 moved out.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold a general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis. I have also ordered that, within 14 days of the date of this order, Mrs Bray shall hand to Mr Rispen any body corporate books and records which may be in her possession.Ronald John Rispen1/9 Elwood Court, Burleigh Waters Q 4220372121n2yn