Bangalow Court [2002] QBCCMCmr 430 (3 July 2002)

DJ ReardonREFERENCE: 0387-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5697
Name of Scheme:	Bangalow Court
Address of Scheme:	3 Elizabeth Farm Court MAROOCHYDORE QLD 4558

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

John Grahame Day on behalf of the State of Queensland,

DJ ReardonI hereby order that-

1.	Steven Roy BAILEY, of the Queensland Government Department of Main Roads, is appointed as Administrator to call, hold and chair an annual general meeting (“the meeting”) of the “Bangalow 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 -

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 the Owner of the two lots included in the scheme at least 1 days notice of the meeting.

3.	The Body Corporate must consider and determine the matters set out in section 62(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) at the meeting.

4.	The Body Corporate may consider any other matter before it at the meeting.

5.	The meeting must otherwise be called and held as an annual general meeting in accordance with the Act and the Standard Module.

I further order that the meeting shall be deemed to be the First Annual General Meeting for the scheme.

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 preceding the month in which the anniversary of the meeting authorised by this order falls.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0387-2002

“Bangalow Court” CTS 5697

The applicant, the Owner of Lots 1 and 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“I request that the adjudicator make an order under section 223(3)(p) of the Body Corporate and Community Management Act 1997 and section 25(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 to appoint the person named in the attached consent statement to convene a general meeting to establish the committee.

As part of that order, I also request that the adjudicator order that the date of the general meeting that is held to establish the committee is taken to be the date of the first annual general meeting. I seek this order so that the financial year for the scheme can be determined.”

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(4) 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)).

The “Bangalow Court” community titles scheme consists of two lots and common property. The community management statement for the scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme. I note that the State of Queensland is currently the registered owner of both lots included in the scheme.

Sections 62(1) and (2) of the Standard Module provide that the original owner must call and hold the first annual general meeting of the body corporate. 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, an order of an adjudicator may appoint a person to call the first annual general meeting within a stated time (section 62(4)). Section 60 of the Standard Module provides that an annual general meeting “must be called and held within 3 months after the end of each of the scheme’s financial years”.

In the application, the Applicant states that there is currently no properly formed committee for the “Bangalow Court” Body Corporate. From the application it appears that the records, other documents and seal for the Body Corporate were not handed over to the current owner, and cannot be located.

In the circumstances, because it is not possible for the Applicant or me to properly verify that a first annual general meeting was conducted for the scheme, I am satisfied that an order should be made in the terms authorised by section 62(4) of the Standard Module. The appointment is necessary to authorise a person to call and hold what will be deemed to be the first annual general meeting of the scheme, and allow the Body Corporate to thereafter proceed on a proper legal basis.

In regards to the committee for the Body Corporate, I draw the Applicant’s attention to sections 11(2) and (3) of the Standard Module, which provide that if there are two lots included in the scheme which are in identical ownership, “the committee is a committee of 1 consisting of the individual who is the owner, or the nominee of the owner, of the lots, and the individual holds all the executive positions on the committee”.

The Applicant has also raised the issue of the financial year for the scheme. In this regard, I intend to order that for the purpose of determining future financial years of the Body Corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.Steven Roy BAILEYDepartment of Main Roads311nn