One Evans Street [2003] QBCCMCmr 243 (25 November 2003)

Number of Scheme:	30631
Name of Scheme:	One Evans Street
Address of Scheme:	1 Evens Street, BELGIAN GARDENS QLD 4810

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

I hereby order that the application by Rhonda Ellen Smith, the co-owner of lot 1 for an order that the body corporate records be re-established to comply with the requirements of the Act and should include:

• Budget
• Insurance compliance in relation to common property and public liability
• Establishment of financial year to end
• The appointment of Mrs Rosemary Kingberry to re-establish the records and hold a general meeting to adopt,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0329-2003

"One Evans Street" CTS 30631

The applicant, Rhonda Ellen Smith, the co-owner of lot 1 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

That the body corporate records be re-established to comply with the requirements of (the Act). The re-establishment should include:

I further ask that the cost of this re-establishment be met from accumulated monies of the body corporate. The facilitator would require copies of plans, CMS and other documentation as required.

Section 276(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 the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

In her grounds, the applicant states that her "biggest concern is that the body corporate has not been properly set up". The applicant concludes that lot 2 is for sale and "as a result the body corporate should be functioning in a reliable manner. Attempts have been made to communicate with the occupants of lot 2 on other issues, but they have chosen to respond to us via their solicitor and not in person. This makes it very difficult and uncomfortable to resolve any issues, especially one as important as this".

The then owners of lot 2, William Duncan Stainton and Robyn Patricia Stainton, have responded to the application by way of submission. The Staintons have provided copies of the minutes of the AGM held on 24 September 2002. This meeting considered such matters as insurances, administration fund and sinking fund. A further meeting was held on 30 September 2002 at which the chairperson resigned and the applicant Smith was appointed to all executive positions on the committee and as the sole signatory of the administrative and sinking fund.

The owners of lot 2 sold their lot and that sale was recorded on the title on 19 September 2003.

Given that an AGM of the body corporate was held in September 2002, then technically, there is no requirement to hold another AGM until the next September or thereabouts. During the meantime the applicant was the appointed secretary of the body corporate which would have enabled her to undertake virtually all she is seeking to achieve by the terms of this order. In particular, as secretary and treasurer and sole signatory to the accounts, the applicant could have established body corporate bank accounts, sent out contribution notices as per the resolutions carried at the first AGM, and confirmed body corporate insurances.

As for the "establishment of financial year to end", the Act provides the following definition –

"financial year", of the body corporate for a community titles scheme (other than a community titles scheme established for an existing 1980 Act plan under the transitional provisions), means--
(a) the period from the establishment of the scheme until the end of the month immediately before the month when the first anniversary of the establishment of the scheme falls, and each successive period of 1 year from the end of the first financial year; or
(b) if an adjudicator changes the financial year of the body corporate--the period fixed by the adjudicator as the financial year and each successive period of 1 year from the end of the period.

Given this definition, the financial year end date of this body corporate is 31 August each year, and the financial year for the scheme is 1 September to 31 August respectively.

It seems to me that it is the applicant’s own lack of knowledge of these matters, rather than any failure on the part of others, which has prevented her from properly establishing or operating the body corporate.

I understand that there are now new owners for lot 2. An AGM for this financial year is now required to be held. I consider that it is within the applicant’s authority as secretary to convene this meeting. I do not propose to appoint a body corporate manager as administrator. This is a matter which should be considered and voted on by the body corporate in general meeting. The applicant will need to convince the other owners that the body corporate should appoint a body corporate manager. In the circumstances, this application is dismissed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

One Evans Street [2003] QBCCMCmr 243 (25 November 2003)