Jilgar Court [2002] QBCCMCmr 46 (30 January 2002)

P J HANLYREFERENCE: 0503-2001

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



I hereby order that the motion purporting to appoint Mr B Williams as body corporate manager passed at the extraordinary general meeting held on 12 August 2001 was at all times void.

I further order that the application for an order to appoint an administrator to convene a general meeting of Jilgar Court body corporate, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0503-2001

“Jilgar Court” CTS 14461

The applicant, Marie Burnett, the owner of lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order to invalidate the extraordinary general meeting of Jilgar Court body corporate held on 12 August 2001

An order to appoint an administrator to convene a general meeting of Jilgar Court body corporate.

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)).

In the supporting grounds, the applicant states that the extraordinary general meeting held on 12 August 2001 should be invalidated as it was not called in accordance with the provisions of the Act or the Body Corporate and Community Management (Standard Module) Regulation 1997, by which this scheme is regulated.

All owners were invited to respond to the application. Submissions were received from 5 of the remaining 7 owners in the scheme. These owners recognised the technical inadequacies of the meeting in question, but all reiterated their desire to have Mr Williams appointed as body corporate manager for Jilgar Court.

It is clear on the material before me that insufficient notice was given to owners of the extraordinary general meeting held on 12 August 2001, notwithstanding that 7 out of 8 owners were present, either in person or by proxy, at the meeting. Section 43 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the standard module) provides that a general meeting must be held at least 21 days after notice of the meeting is given to lot owners. In addition, the standard module provides what the notice of meeting must contain, and by what it must be accompanied (section 42(3)). Section 45(2) of the standard module also specifies what the agenda of the meeting must include. The meeting material provided to me did not meet these requirements.

I2nn addition, the only item on the agenda of the meeting was the appointment of Mr Williams as body corporate manager. Sections 78 and 87 of the standard module are applicable to this appointment, and provide as follows:
ÿ

Form of engagement

78.(1) The engagement of a person as a body corporate manager or

service contractor is void if the engagement does not comply with the

requirements stated in subsection (2).

(2) The engagement must—

(a) be in writing; and

(b) state the term of the engagement (including when the term begins

and when it ends); and

(c) state the functions the body corporate manager or service

contractor is required or authorised to carry out; and

(d) state the basis on which payment for the body corporate

manager’s or service contractor’s services is to be worked out.

Examples of paragraph (d)—

1. A body corporate manager’s payment could be calculated on the basis of an

amount per lot.

2. A body corporate manager’s payment could include charges calculated on the

basis of a stated amount per telephone inquiry or a stated amount for attendance fees

for additional committee or general meetings.

(3) The engagement must not be in the form of a by-law.

Authority to make engagement or give authorisation

87.(1) The body corporate may engage a person as a body corporate

manager or service contractor, or authorise a person as a letting agent, only

if—

(a) the engagement or authorisation is approved by ordinary

resolution of the body corporate;17 and

(b) the terms of the engagement or authorisation are included in the

material forwarded to members of the body corporate for the

general meeting that considers the motion to approve the

engagement or authorisation.

(2) If subsection (1) is not complied with, the engagement or

authorisation is void.

(3) A body corporate may agree to the amendment of an engagement or

authorisation mentioned in subsection (1) only if the amendment is

approved by ordinary resolution of the body corporate.

(4) If subsection (3) is not complied with, the amendment of the

engagement or authorisation is void. (emphasis added)

In this instance, it appears that the body corporate also has not complied with section 87(1)(b). Accordingly, the motion to appoint Mr Williams as body corporate manager was at all times void, and I have ordered accordingly.

However, I do not propose to make the second order sought by the applicant. There is no evidence that the day-to-day administration of this body corporate has broken down, or that the affairs of the body corporate are in such disarray as to warrant the appointment of an administrator. A committee was elected at the annual general meeting held on 9 April 2001, and that committee holds office, unless other circumstances intervene, until the next annual general meeting, which I note is to be held on 8 April 2002. Accordingly, as has been foreshadowed in the submissions, the secretary may call an extraordinary general meeting for the purpose of properly appointing Mr Williams, if that is the wish of owners. Of course, if an extraordinary general meeting is to be held, the applicant will have the opportunity of submitting motions for inclusion on the agenda of that meeting if she should so choose, and provided that she forwards such motions to the secretary in accordance with section 41 of the standard module.