La Cachette [2003] QBCCMCmr 216 (10 November 2003)

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

Kathleen PARAGREEN as the owner of Lot 2; Colin WHITE as the owner of Lot 3; and Nicholas Damien CROFT as a co-owner of Lot 4,

I hereby order that -

1. Noosa District Body Corporate Management of Suite 9, 41 Sunshine Beach Road, Noosa Heads Qld 4567 (PO Box 385 Noosa Heads Qld 4567), is appointed Administrator to call, hold and chair a general meeting ("the meeting") of the body corporate 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
• the election of committee members.

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

I further order that within fourteen (14) days of the date of this order the Administrator must –

1. give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme, or if there is no roll then to each person whose name should appear on the roll, at an address that is most likely to find them; and
2. invite owners to submit motions for inclusion on the agenda of the meeting, giving not less than fourteen (14) days in which to submit them to the Administrator.

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 be in the same manner as provided for in sections 14 and 15 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

(3) The Administrator must not give the notice of meeting to owners earlier than three (3) weeks from the date of this order.

(4) 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.

I further order that for the purposes 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 0733-2003

"La Cachette" CTS 11385

The applicants, Kathleen Paragreen, Colin White and Nicholas Croft of Lots 2, 3 and 4 respectively, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

JURISDICTION:
This is a dispute between a number of owners (the applicants) 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:
"La Cachette" was registered as a building unit plan (now termed a building format plan) in August 1980 and comprises four lots.

The applicants represent 3 of the 4 lots which constitute the scheme. Until recently, the owners of Lot 1 Gregory and Karyn Gapp have "administered" the body corporate since 3 June 2002. The last annual general meeting was held on 25 February 2002 and incomplete records have been kept since March 2001. No committee is in office and there is no budget in place.

The co-owners of Lot 1 are aware of this application. The three applicants constitute a majority vote and wish to have the nominee conduct a meeting so that the body corporate can re-establish itself as a properly operating entity within the legislation, including the establishment of proper records.

DETERMINATION:
In the circumstances, I am satisfied that an order should be made for the appointment of a person to convene a meeting to so that the body corporate can administer itself in accordance with the legislation.

As the scheme was registered under the previous legislation, I have also made provision for future annual general meetings to be determined relative to the date of the meeting ordered – this will also enable a full financial year budget to be considered at the meeting.

Number of Scheme:	11385
Name of Scheme:	La Cachette
Address of Scheme:	4 Berrima Road NOOSA QLD 4567

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

La Cachette [2003] QBCCMCmr 216 (10 November 2003)