Glenallen [2002] QBCCMCmr 9 (9 January 2002)

C G YOUNGREFERENCE: 0724-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28559
Name of Scheme:	Glenallen
Address of Scheme:	75 Allen Street HAMILTON QLD 4007

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Paulina LEVY, as the owner of Lot 4,

C G YOUNGI hereby order that –

(a) the meeting convened to be held on 23 January 2002 shall be deemed to be the annual general meeting of the body corporate required under the provisions of section 60 of the Body Corporate and Community Management (Standard Module) Regulation 1997 to be held between 1 September 2001 and 30 November 2001; and

(b) the secretary of the body corporate, or the Body Corporate Manager having been delegated the powers of secretary, B & F Body Corporate Management Pty Ltd, must include a motion on the agenda (and as a written vote) for the annual general meeting for the ratification of unauthorised contributions to the body corporate administrative and sinking funds levied on owners, and give immediate notice of this motion to owners. 1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0724-2001

“Glenallen” CTS 28559

The applicant, Paulina Levy of Lot 4, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) to remedy the situation of the body corporate having not held its annual general meeting within the required period, with no notices sent to owners for any annual general meeting since, though fund contribution notices have been served on owners. The applicant seeks an order for an annual general meeting (hereafter “the AGM”) to be called as soon as possible.

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)).

To rectify the situation as soon as possible, on Tuesday 8 January 2002 I conducted a teleconference with Phillip Levy, as agent for the applicant Paulina Levy, and Nicola Bryant, member of the Body Corporate Manager company B & F Body Corporate Management Pty Ltd, as representative for the respondent body corporate. Bryant stated that the Body Corporate Manager had staffing difficulties resulting in the company not performing the duties it had contracted to supply the body corporate, including the holding of the AGM due to be held between 1 September 2001 and 30 November 2001 (end of financial year being reported as 31 August each year). She further stated that a notice of meeting had, since receipt of the application, been served on owners with the meeting to be held on 23 January 2002.

She confirmed that contributions had been levied on owners without the proper authorisation of the body corporate in general meeting as required by the legislation.

The matter of not calling the AGM when due means that the body corporate was in breach of the legislation, and this breach remains though the terms of this order provides for the meeting of 23 January to be deemed to be the AGM for 2001. The order also requires that a motion be included on the agenda for owners to consider the ratification of the unauthorised contributions levied on owners.

I informed both parties that the matter of the Body Corporate Manager not having performed according to its agreement with the body corporate, was a matter for them to resolve between themselves.1n