Rivendell Way [2002] QBCCMCmr 40 (29 January 2002)

C G YOUNGREFERENCE: 0492-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15307
Name of Scheme:	Rivendell Way
Address of Scheme:	35 Rivendell Way COOLUM BEACH QLD 4573

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

Stephen Mudd, Josephine Polistena and Francesco Polistena, the owners of lots 1-7


I hereby order that –

1.	Stephen Mudd, Josephine Polistena and Francesco Polistena of C/- 60 Wellington Street, West Footscray, Victoria 3012 are appointed as administrators to call, hold and chair a general meeting (“the meeting”) of “Rivendell Way” within three (3) months of the date of this order.
2.	The administrators shall hold the appointment for the period beginning on the date of this order until the close of the meeting ordered.

I further order that –

1.	Under section 42(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the “Standard Module”) no notice of meeting need be given.

2.	The meeting must consider and determine the matters set out in section 62(3) of the Standard Module.

3.	The meeting may consider any other motion.

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 0492-2001

“Rivendell Way” CTS 15307

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

An order to permit the applicants to convene an annual general meeting for the scheme.

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.

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 Standard 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 62(3) of the Standard 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 applicants, who are the owners of all lots comprising the scheme, state that to their knowledge no annual general meetings have been held for the scheme since it was registered on 7 March 1997.

As the applicants are the owners of all lots, no notice of meeting need be given. However the matters contained in section 62(3) need to be considered and the meeting decisions minuted.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 62(4) of the Standard 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.



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