Zephyr Court [2002] QBCCMCmr 432 (4 July 2002)

DJ ReardonREFERENCE: 0372-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11428
Name of Scheme:	Zephyr Court
Address of Scheme:	8 Urambi Court MOOLOOLABA QLD 4557

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

Karl Wabersinke, the Owner of lot 1


DJ ReardonI hereby order that-

1.	Kathryn Hunter-Smith of BUGT Small Schemes, 35 Dalton Drive Maroochydore, is appointed as Administrator to call, hold and chair an annual general meeting (“the meeting”) of the “Zephyr 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 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.	Within 7 days of the date of this order, the Administrator must provide a copy of this order, and the accompanying statement of reasons to each owner of a lot included in the “Zephyr Court” community titles scheme (“lot owners”).

3.	Within 7 days of the date of this order, the Administrator must provide lot owners with a written notice inviting, and allowing owners 7 days, to submit motions for consideration by the Body Corporate at the meeting, and nominations for committee positions.

4.	The Administrator must issue a notice of meeting to lot owners in accordance with section 42 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”).

5.	The meeting must be held at least 14 days after notice of the meeting is given to lot owners.

6.	The Administrator must not issue the notice of the meeting until after the 7-day period allowed for owners to submit motions and nominations has expired.

7.	The meeting must consider and determine the matters set out in sections 45(2) and (3) of the Standard Module.

8.	Except as provided in this order, the meeting must be called and held in accordance with the provisions of the Body Corporate and Community Management Act 1997 and the Standard Module.

I further 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.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0372-2002

“Zephyr Court” CTS 11428

The Applicant, the Owner of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote –

“That the Commissioner order BUGT Small Schemes to convene an Annual General Meeting of the Body Corporate and further ORDER the financial year end for the body corporate.”

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 a 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 the Act or the community management statement (section 223(3)(v)).

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 “Zephyr Court” community titles scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

Section 60 of the Standard Module provides for the requirement of bodies corporate to convene annual general meetings. Specifically, section 60 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 supporting grounds to the application, the Applicant indicates that it appears that an annual general meeting of the “Zephyr Court” Body Corporate has not been held since 1992.

I note that I have been provided with a facsimile signed by the Owners of Lots 2 and 3. In the facsimile, the Owners of Lots 2 and 3 state, “We the members of Zephyr Court agree to Mr K Wabersinke making an application to the Commissioner to Resolve a Dispute.” I am somewhat concerned that this consent does not specifically confirm support for the appointment of an administrator to convene a general meeting. However, I consider that as it appears that a proper general meeting has not been held for a significant period of time, an order appointing an administrator to convene a general meeting of the Body Corporate is warranted. In making this determination, I am also mindful of the limited role and powers that this order confers on the Administrator.

In the circumstances, and for the reasons outlined above, 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. nn In addition, I intend to make an order setting the financial year for the Body Corporate.