Ipswich Unilink Village [2003] QBCCMCmr 110 (9 September 2003)

Last Updated: 17 May 2005

REFERENCE: 0589-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30190
Name of Scheme:	Ipswich Unilink Village
Address of Scheme:	191 - 199 Warwick Road, IPSWICH QLD 4305

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

I hereby order that – 1. Stewart Silver King & Burns (Brisbane) Pty Ltd, Level 2 The Precinct, 12 Browning Street, West End Qld 4101 (PO Box 5955, West End Qld 4101), is appointed Administrator to call, hold and chair a general meeting ("the meeting") of "Ipswich Unilink Village" within three (3) months of the date of this order for the purpose of the election of persons to the vacant committee positions of chairperson and ordinary members. 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 – (1) For the purpose of calling, holding and chairing the meeting, the Administrator shall have all the powers of the 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 necessary for the calling and holding of the meeting. (2) The nomination and election procedures for the election of committee members shall, in the discretion of the Administrator, be carried out either in the same manner as provided for at each annual general meeting, or under sections 14 and 15, of the Body Corporate and Community Management (Standard Module) Regulation 1997, and the election shall be by open ballot. (3) The meeting shall be otherwise called and held as an extraordinary general meeting in accordance with the Act, and the meeting may also deal with any other motion properly before it.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0589-2003

"Ipswich Unilink Village" CTS 30190

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"We wish to convene an Extraordinary General Meeting to conduct an open ballot to appoint the owners who have nominated to stand on the committee."

JURISDICTION:
This is a dispute between an owner (the applicants Graham) and the body corporate (the respondent), concerning a failure by the body corporate to call meetings, keep records and conduct its affairs in accordance with the legislation. This is a matter which comes within the dispute resolution provisions of the Act (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:
Section 276(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 (see section 276(2) of the Act).

Specifically, without limiting the power of an adjudicator to make an order under section 276(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 (see Item 6 of Schedule 5 to the Act) or 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.

An order appointing an administrator may be the only order the adjudicator makes for an application (see section 276(4) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (see section 284 of the Act).


APPLICATION:
"Ipswich Unilink Village" was established as a building format plan in April 2002, and comprises 16 lots. It is regulated under the Bopdy Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

The brief facts are as follows.

The annual general meeting was held on 25 June 2003 at which James O’Hare, a employee of the Body Corporate Manager, Stewart Silver King & Burns, was elected as non-voting secretary and treasurer. There were no nominees for the positions of chairperson or ordinary member, either prior to or from the floor of the meeting. This meant that the body corporate did not have a properly formed committee (see section 9 of the Standard Module).

On 5 August 2003, the secretary forwarded a circular letter to owners seeking nominations to fill the vacant positions in order to comply with the legislation and have a functioning committee. A nomination form was attached. A number of owners have nominated or expressed interest in being a committee member.

The secretary, on behalf of the body corporate, has made application for an order to allow an extraordinary general meeting to be held to appoint a committee.


DETERMINATION:
"Ipswich Unilink Village" was established as a building format plan in April 2002 and comprises16 lots.

Section 25 of the Standard Module makes provision for the filling of casual vacancies but does not specify that this process may apply in the case where the minimum committee membership (3) was not achieved at the annual general meeting election of committee members (a proposed amendment to the regulations will specifically cater for this situation).

Section 23 of Schedule 5 to the Act provides that an Administrator may be appointed by an adjudicator to perform obligations of the body corporate under the Act. It seems to me that, in the absence of any particular provision to remedy the inadequacy of a committee elected at an annual general meeting, the appointment of an Administrator to convene a general meeting for the purpose is the most appropriate means of doing so. However, the size of the committee must be limited to the minimum number, three members, under the limiting provisions of section 22(4) of the Standard Module. That section provides that where the minimum number is not obtained by nominations, then at the annual general meeting nominations must be called from the floor but only sufficient members must be appointed to achieve the minium number. While the present situation concerns the period after the annual general meeting, the limit would still apply. Accordingly, as the non-voting secretary/treasurer is counted as a member, and a voting chairperson is necessary, the body corporate needs to elect one person as chairperson and another person as ordinary member. In the foregoing comments I have assumed that O’Hare is to remain in office as secretary/treasurer (though I notice these positions were left open on the nomination form sent to owners) however my order is general enough to allow for alternative circumstances.

In the circumstances, I am satisfied that an order should be made for the appointment of a person to convene a meeting to choose members to form a properly formed committee of three persons.