Barra [2002] QBCCMCmr 657 (1 November 2002)

REFERENCE: 0667-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17212
Name of Scheme:	Barra
Address of Scheme:	3 Cutter Court, BRIBIE ISLAND QLD 4507

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

Alan Edmond PETTY and Kathleen Barbara PETTY, as the co-owners of Lot 2,

I hereby order that -

1. Bribie Island Body Corporate Management Services, 5 McMahon Street, Bribie Island Qld 4507 (PO Box 747 Bribie Island Qld 4507) is appointed Administrator to call, hold and chair a general meeting (“the meeting”) of “Barra” within three (3) months of the date of this order for the purpose of –

•	the consideration of motions included on the agenda of the meeting; and
•	deciding committee executive positions.

2. The Administrator shall hold the appointment for the period beginning from the date of this order until the close of the meeting ordered.

I further order that upon receipt of this order the Administrator must five a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme.

I further order that –

1. For the purpose of calling, holding 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 these powers to another person; or
•	To incur 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. Executive members of the committee shall be chosen in accordance with section 11(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997.

3. The Administrator must upon receipt of this order give at least two (2) weeks written notice to owners inviting them to submit motions for inclusion on the agenda of the meeting.

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

5. The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 42 and 45 of the Standard Module, and all other provisions relating to meetings under Part 4 of the Standard Module.

6. The meeting may also consider any other motion before it.

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 the future financial years of the body corporate, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0667-2002

“Barra” CTS 17212

The applicants, Alan and Kathleen Petty of Lot 2, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

“To appoint an Administrator, Bribie Island Body Corporate Management Services, to establish the Body Corporate in accordance with the Legislation.”

JURISDICTION:
The application concerns the failure of the body corporate to: call the statutory First Annual General Meeting and subsequent annual general meetings; establish proper records; and generally administer itself in accordance with the legislation. These are matters that fall within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

General powers of an adjudicator in making an order:

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 an 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 regulation 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. A general meeting (which includes an annual general meeting) may be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions (see section 40(c) of the Standard Module). Moreover, the agenda for an annual general meeting must include the items set out in sections 45(2) and (3) of the Standard Module.

APPLICATION:
The applicants are the co-owners of one of the two lots which comprise the scheme. There is no evidence that the body corporate has ever held any meetings, including the statutory First Annual General Meeting, and the current owners now wish to establish the body corporate as a functioning body in accordance with the legislation. The owner of Lot 1, Eugene Evelyn Kaiser, has consented in writing to remedying the situation, and verbally for the appointment of the nominee as Administrator for that purpose.


DETERMINATION:
In the circumstances, I am satisfied that an Administrator needs to be appointed to convene and conduct a meeting in order to establish the records of the body corporate and to put the body corporate on a proper legal footing. This will allow the body corporate to administer its affairs properly in accordance with the legislation.

I have also made provision for future annual general meetings to be determined based on the date of the meeting - this will also enable a full financial year budget to be considered at the meeting.