Imperial View Apartments [2003] QBCCMCmr 255 (27 November 2003)

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

I hereby order that:

1. Melissa Geraghty (appointee) of BUGT Management (Gold Coast) Pty Ltd 9/189 Ashmore Road, Benowa, Gold Coast is temporarily appointed as an administrator to perform the obligations of the body corporate for Imperial View Apartments;
2. Within two months of the date of this order, the appointee is to call, hold and chair a general meeting (meeting) of Imperial View Apartments; and
3. Provided that a committee is appointed at the meeting, the appointee will cease acting as administrator from the close of the meeting. Otherwise, the appointee will cease acting as administrator after the expiry of three months from the date of this order, unless a further order is made extending the appointment of the administrator.

I further order that:

1. The appointee is to seek nominations and motions from all owners by a notice given within 7 days of the date of this order. The procedures in the Standard Module (Standard Module 13 and 41) are to be followed as far as practicable except that nominations and motions are not required before the end of the preceding financial year but are to be accepted by the appointee provided they are received within 14 days’ of the notice being issued;
2. The procedures in the Standard Module governing giving notice for and holding the meeting are to be followed as far as practicable except that the appointee is only required to give owners 14 days notice of the meeting;
3. For the purpose of carrying out the obligations of the body corporate, the appointee is granted all the powers, authorities, duties and functions of the chairperson, secretary and treasurer of the body corporate, with the exception of a power to delegate those powers, authorities, duties and functions to another; and
4. The appointee’s reasonable remuneration and costs of complying with this order are to be paid out of the funds of the body corporate and the appointee is granted power to levy a special contribution against the owners of lots included in the scheme to meet the costs of the administration;

I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0746-2003

"Imperial View Apartments" CTS 9800

Imperial View Apartments Community Titles Scheme (Imperial View) is a 5 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

Cheryl Neal, an owner of lot 5 (applicant) has brought application 746-2003 as an interim application seeking appointment of an administrator for the scheme. Cheryl Neal and Frederick John Neal had previously brought application 502-2003 seeking an annual general meeting be called to address a number of issues including the implementation of regular meetings, the appointment of a body corporate manager, payments for maintenance, contributions for the scheme, and exclusive use areas for the scheme. Both applications are made against the body corporate (respondent). Submissions have been sought from all owners in the scheme.

I will deal with applications 502-2003 and 746-2003 together because the subject matter is closely related and all material on each application has been available to all owners in the scheme. These reasons for decision and the orders made will be identical in respect of each application.

The body corporate has not held an annual general meeting for over four years. This is a contravention of the Act as annual general meetings are required to be held within three months after the end of the scheme’s financial year (Standard Module, 60). The holding of an annual general meeting is extremely important in the proper management of a body corporate as matters required to be dealt with at this meeting include presentation of the accounts, approval of budgets, fixing of levies and election of the committee.

Some owners appear to believe that the body corporate has granted exclusive use areas to the owners of lots 1 and 5. However, a review of the community management statement for the scheme indicates that no exclusive use areas have been properly granted. An exclusive use by-law will only come into effect on the day that it is recorded by the registrar in the community management statement for the scheme (Act, 179).

Some owners appear to believe that the lot entitlements for the scheme have been altered to reflect the grant of exclusive use areas to some owners. Again, a review of the community management statement for the scheme indicates that lot entitlements remain equal for all lots. The Act sets out specific procedures for alteration of lot entitlements (Act, 46-51).

Owners currently pay contributions every six months based on resolutions and budgets adopted over four years ago. No contribution notices are issued to owners.

The body corporate must adopt administrative and sinking fund budgets every year (Standard Module, 94). The body corporate must also issue contribution notices to each owner (Standard Module, 96).
The applicant has submitted that receipts for contributions are not given unless a self addressed envelope is provided. The manner in which the body corporate collects contributions and provides any acknowledgement of contributions received will be influenced by the body corporate’s responsibility to act reasonably (Act, 94). However, there are no specific requirements regarding the issue of receipts. Without more information being provided it would not appear unreasonable for the body corporate to require owners to provide self addressed envelopes if they wish to receive a receipt from the treasurer.

The applicant has submitted that there is a lack of understanding about maintenance issues. These issues are covered in the Act and by information sheets issued by this office.

It would be beneficial for owners to consider all matters relevant to the administration of their body corporate including whether it is necessary to update rolls and registers for the scheme. Insurance is another matter that needs to be kept up to date (Standard Module, 126 - 137).

The applicant seeks the appointment of a body corporate manager. This is a matter that the owners could consider and vote upon if an appropriate motion is put forward.

The owners may also wish to consider whether they wish to change the by-laws or the regulation module applying to the scheme.

Given the current status of the scheme, particularly that the last annual general meeting was over four years ago, I consider that it is appropriate to appoint an administrator to the scheme for a short period. The role of the administrator will be to meet any current obligations of the body corporate and to call an annual general meeting to facilitate the administration of the scheme continuing on a proper legal basis.

Some owners have opposed the appointment of an administrator and have provided evidence that a meeting is proposed to be held in the near future to endeavour to rectify some of the problems in the administration of the scheme. However, in light of the problems above, I consider it is necessary to appoint an administrator to ensure that administration of the body corporate’s affairs can continue on a proper legal basis. This is not to say that these owners do appear to show a genuine desire to properly administer the body corporate and the owners as a whole may well elect these owners as committee members and put the administration of the body corporate into their hands. The Office of the Commissioner for Body Corporate and Community Management provides an information service that can assist owners in administering the body corporate in accordance with the legislation. The telephone number of this service is 1800 060 119.

Some owners have also expressed concerns at the costs of appointing an administrator. By cooperating with and assisting the administrator these costs can be minimised. If the owners subsequently administer the scheme in accordance with the legislation they will minimise any subsequent costs by avoiding the need to appoint an administrator or body corporate manager in future.

Number of Scheme:	9800
Name of Scheme:	Imperial View Apartments
Address of Scheme:	140 Frank Street LABRADOR QLD 4214

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Imperial View Apartments [2003] QBCCMCmr 255 (27 November 2003)