Mace Place [2002] QBCCMCmr 598 (27 September 2002)

REFERENCE: 0396-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20098
Name of Scheme:	Mace Place
Address of Scheme:	1517 Anzac Avenue KALLANGUR QLD 4503

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

MGW Hotels Pty Ltd, the Owner of Lot 6,

I hereby order that-

1.	Timothy Sheehan of Stewart Silver King and Burns, Level 2 ‘The Precinct’ 12 Browning Street West End, is appointed as Administrator to call, hold, and chair an annual general meeting (“the meeting”), of the “Mace Place” Body Corporate in accordance with this order and within 3 months of the date of this order.
2.	The meeting shall be deemed to be the first annual general meeting of the Body Corporate for the purposes of the Body Corporate and Community Management Act 1997 (“the BCCM Act”).
3.	The Administrator shall hold the appointment for the period beginning on the date of this order, until the close of the meeting ordered to be held.

I further order that 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 “Mace Place” community titles scheme (“lot owners”).

I further order that-

1.	For the purpose of calling, and chairing the meeting, the Administrator shall have all the powers of 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 reasonably 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 issue lot owners with a written notice inviting, and allowing owners at least a further 14 days to submit motions and nominations for committee positions, for consideration by the Body Corporate at the meeting.
3.	The Administrator must prepare an agenda for the meeting, including but not necessarily limited to, the matters set out in section 62(3), and sections 45(2),(3) and (4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”).
4.	After the time for submitting motions has expired, the Administrator must issue a notice of meeting in accordance with section 42 of the Standard Module.
5.	The meeting must be held at least 21 days after notice of the meeting is given to lot owners.
6.	Except as provided in this order, the meeting must be called and conducted in accordance with the BCCM Act and the Standard Module.

I further order that for the purposes of the BCCM Act, the next financial year end date of the Body Corporate shall be 30 August 2003.

I further order that thereafter, each successive financial year for the Body Corporate shall commence on 1 September and end on 31 August respectively.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0396-2002

“Mace Place” CTS 20098

The Applicant, the Owner of Lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the BCCM Act”), quote-

“That Mr Timothy Sheehan of Stewart Silver King & Burns (Brisbane) Pty Ltd convene, hold and preside at a general meeting of the body corporate which meeting is deemed to be the first annual general meeting, the agenda of which shall be in accordance with section 62 of the Standard Module.

That the body corporate’s financial year-end date be 30^th August in each year.”

Section 223(1) of the BCCM 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)). Additionally, the adjudicator may make an order appointing 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 “Mace Place” community titles scheme was originally created under a group titles plan of subdivision (now referred to as a standard format plan of subdivision), which was registered on 30 March 1992. Further subdivision of the scheme land occurred in 1994, 1997 and 1998. The scheme currently consists of 23 lots and common property. The community management statement for “Mace Place” indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

At the time of establishment of “Mace Place”, the Building Units and Group Titles Act 1980 (“the BUGT Act”) applied to the scheme. Section 29 of the BUGT Act imposed an obligation on original proprietors of schemes created under a building units plan or a group titles plan of subdivision, to convene the first annual general meeting of the body corporate within 3 months of the registration of the plan of subdivision. The intended purposes of first annual general meetings include reviewing body corporate insurance policies and budgets, deciding on committee positions, considering the by-laws for the body corporate and deciding whether or not to engage a body corporate manager for the scheme.

Section 29A(1) of the BUGT Act imposed a continuing obligation on bodies corporate to convene and hold an annual general meeting. The requirement continued with the commencement of the BCCM Act in 1997. Specifically, section 60 of the Standard Module of the BCCM Act 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”.

From the material before me provided by the Applicant, it appears that no first annual general meeting was held for the “Mace Place” Body Corporate, or at least no record of a first annual general meeting of the Body Corporate can be located. In addition, the Applicant indicates that it has been unable to locate or obtain any records of the Body Corporate to date.

If an original proprietor, or owner fails to convene a first annual general meeting of a body corporate, or if the body corporate fails to regularly hold its required annual general meetings, it is necessary for an adjudicator to make an order appointing an administrator to call and hold a general meeting of the body corporate. The purpose of such an order is to facilitate the body corporate conducting its affairs in accordance with the legislation, and on a proper legal footing.

In the course of administering this application, the Commissioner for Body Corporate and Community Management invited all owners of lots included in the scheme to make a written submission about the application. The Owners of Lot 7, which I understand is currently a vacant block of land, have made a submission opposing the application. The Owners of Lot 7’s main concern appears to be that the establishment of a body corporate will result in a sharing of maintenance and other costs between owners. The Owners of Lot 7 point out that unlike the other lots included in the scheme, currently Lot 7 does not generate any maintenance costs, as there is no building on the lot.

While I appreciate the concerns of the Owners of Lot 7, the legislation makes no provision for particular lots, or owners of lots, included in a community titles scheme to be exempt from the operation and requirements of the BCCM Act. As such, I do not consider that it would be proper for me to restrict the proper establishment of the “Mace Place” Body Corporate for the reasons outlined by the Owners of Lot 7.

In the circumstances, I am satisfied that it is necessary, and proper for me to make the orders sought by the Applicant. I consider that it is important to note that while the Body Corporate does not appear to have complied with the relevant legislation to date, the Body Corporate has had obligations in regards to meetings, records and the like since the establishment of the scheme. This order simply enables the Body Corporate to convene a meeting and conduct its affairs on a proper legal footing. It does not impose obligations on the Body Corporate or individual owners that do not already apply by virtue of the BCCM Act.

As a final note, I would like to point out to all owners that the Office of the Commissioner for Body Corporate and Community Management offers an information service for people involved in Queensland community titles scheme. Information officers provide information on the legislation primarily via a freecall telephone service which can be accessed on 1800 060 119.