Buckingham Court [2003] QBCCMCmr 338 (20 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0554-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22249
Name of Scheme:	Buckingham Court
Address of Scheme:	9 Prince Street URANGAN QLD 4655

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

Noel Douglas Bird, the owner of lot 2

RA Meek C G YOUNGI hereby order that –

(1)	Noel Douglas Bird of 2/9 Prince Street, Urangan QLD 4655 is appointed Administrator to call, hold and chair an annual general meeting ("the meeting") of "Buckingham Court" within two (2) 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 hold appointment for the period beginning from the date of this order until the close of the meeting ordered to be held.

I further order that within seven (7) days of the date of this order the administrator must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme.

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, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

(2)	Executive members of the committee shall be chosen in accordance with section 11(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997.
(3)	The Administrator must give at least two (2) weeks written notice inviting owners to submit motions for inclusion on the agenda of the meeting.
(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.
(5)	The Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0554-2002

"Buckingham Court" CTS 22249

The applicant, Noel Douglas Bird, the owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I Noel Douglas Bird being the proprietor of lot 2 ... hereby apply to convene an AGM of the "Buckingham Court" body corporate.

Section 223(1) 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 (section 223(2)).

Specifically, without limiting the power of an adjudicator to make an order under section 223(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 section 223(3)(p)) 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.

The administrator has the powers given to the administrator under the order (section 248(2)). Section 248(3) provides that the order may –

a) withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and

b) require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and

c) fix the administrator’s remuneration.

An order appointing an adjudicator may be the only order the adjudicator makes for an application (section 223(4)(a)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The Body Corporate and Community Management Act (Standard Module) (the Standard Module) section 60 provides that an annual general meeting (other than the first annual general meeting) must be called and held within 3 months after the end of each of the scheme’s financial years. A general meeting (which includes an annual general meeting) may be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions (see section 40(c) of the Standard Module). Moreover, the agenda for an annual general meeting must include the items set out in sections 45(2) and (3) of the Standard Module.

Specifically, I have not ordered that an election of the committee be held at the meeting, since given the number of lots in the scheme, or conversely the current number of owners, the provisions of section 11 of the Standard Module apply and an election of committee members is not required since all owners are deemed by that provision to be members of the committee of the body corporate.

In the supporting grounds, the applicant states that the scheme –

... has not had any meeting for years and my intention is to conform with the rules and regulations as layed (sic) down by the commissioner for Body Corporate.

The scheme is a duplex. The owner of the other lot is stated to be Norma Alma Joan Voltz and Mark Paul Voltz (Voltz). This office sought a submission in response to the application from Mrs Voltz on 12 September 2002. No submission was received and subsequently, this office contracted Mrs Voltz by telephone to ask if she was intending to make a submission. Mrs Voltz indicated that she was not intending to make a submission "or have anything to do with the man as he is very aggressive; that she doesn’t want to have any more to do with him".

Whilst it is within the right of Mrs Voltz to conduct herself as she considers appropriate, the fact is that she is one of two members of a body corporate, and as such she has duties to that body corporate, and as well the body corporate has duties itself to perform. Most importantly, each body corporate must hold an annual general meeting each year, in particular to resolve budgets, to set administrative and sinking fund contributions levels, to elect a committee and to deal with other business (eg. building insurances) pertaining to the body corporate. These obligations cannot simply be ignored by a member for the reason that they do not want to deal or have contact with the other owner (member).

In the circumstances, I intend to order in terms as sought by the applicant. It is a requirement that the body corporate hold an AGM. As the administrator, the applicant will need to comply with the requirements of the legislation in convening that meeting, which includes the giving of notice of the meeting to all owners, together with an agenda. This will also include other methods of voting rather than personal attendance by Mrs Voltz at the meeting. For example, she might appoint a proxy to represent her at the meeting. Alternatively, she might return the voting paper indicating her vote on all motions on the agenda. I am satisfied that Mrs Voltz has an obligation to participate in her body corporate, and that she can do this without having to deal to any great extent with the applicant.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold a general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.Noel Douglas Bird2/9 Prince Street, Urangantwo (2)twenty-one (21) n