Nicklin Place [2002] QBCCMCmr 704 (5 December 2002)

REFERENCE: 0736-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5401
Name of Scheme:	Nicklin Place
Address of Scheme:	6 Nicklin Street COORPAROO QLD 4151

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Darafield Pty Ltd, the Owner of Lots 1, 2, 3, 4, 5, and 6

I hereby order that-

1.	Ian D’Arcy of Capitol Body Corporate Administration, 52 Playfield Street, Chermside, is appointed as Administrator to call, hold, and chair an annual general meeting (“the meeting”), of the “Nicklin 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 the owner of the lots included in the “Nicklin Place” community titles scheme.

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.	The Administrator must prepare an agenda for the meeting, including but not necessarily limited to, the matters set out in section 62(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”).
3.	The meeting may also consider any other matter before it.
4.	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 1 day after notice of the meeting is given to the lot owner.
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 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 0736-2002

“Nicklin Place” CTS 5401

The Applicant, the Owner of Lots 1, 2, 3, 4, 5 and 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“That Ian Kenneth D’Arcy of Capitol Body Corporate Administration be appointed to convene an Annual General Meeting of the Body Corporate and that such meeting be deemed to be the first Annual General Meeting of the Body Corporate.”

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 “Nicklin Place” community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan), registered on 12 April 1990. The community management statement for “Nicklin 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 “Nicklin 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 “Nicklin Place” Body Corporate. 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 circumstances, I am satisfied that it is necessary, and proper for me to make the order sought by the Applicant. This will enable the Body Corporate to conduct its first annual general meeting, and to properly establish records of the Body Corporate. In addition, I intend to make an order setting the future financial years of the Body Corporate.