O'Quinn Street Apartments [2003] QBCCMCmr 353 (28 January 2003)

Last Updated: 7 September 2007

REFERENCE: 0063-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30714
Name of Scheme:	O'Quinn Street Apartments
Address of Scheme:	4 O'Quinn Street TOOWOOMBA QLD 4350

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

Merome Lee SMITH, as nominee for Jaltour Pty Ltd ACN 010678994, the owner of Lot 7,


I hereby order that –

(1)	Merome Lee SMITH, of Jaltour Pty Ltd, Unit 7 "O’Quinn Street Apartments", 4 O’Quinn Street, Toowoomba Qld 4350 is appointed Administrator to call, hold and chair an annual general meeting of "O’Quinn Street Apartments" CTS 30714 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 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 fourteen (14) 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)	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 give at least two (2) weeks written notice inviting owners to submit motions for inclusion on the agenda of the meeting.

(4)	The Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.

(5)	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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0063-2003

"O'Quinn Street Apartments" CTS 30714

The applicant, Merome Smith for Jaltour Pty Ltd of Lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"To convene an annual general meeting of Units 1 – 7 of 4 O’Quinn Street to either elect a body corporate committee amongst owner of above properties or a management group."

JURISDICTION:

This is a dispute between an owner (the applicant Merome Smith for Jaltour Pty Ltd of Lot 7) 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, following the first annual general meeting. It therefore a matter which comes within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

General jurisdiction:
Section 223(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 (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.

An order appointing an administrator 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)).

Section 60 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the "Standard Module") 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 of the Standard Module.

APPLICATION AND SUBMISSIONS:

"O’Quinn Street Apartments" is a community titles scheme which was established as a Building Format Plan on 14 October 2002. The applicant states that a meeting, purporting to be the first annual general meeting, was held on 4 December 2002, though no documentation relating to the scheme or the body corporate was delivered to owners (presumably owners will pursue this with the developer/original owner – see sections 62 and 63 of the Standard Module regulations).

No meetings have been held since and 5 of the other owners and the applicant are seeking to hold a meeting for the purposes of choosing a committee and, at the voting of the meeting, engaging a Body Corporate Manager ("management group"). Actually the applicant sets these as being alternatives – the legislation still requires a committee be elected regardless that a Body Corporate Manager is engaged to carry out the administrative work – this is to ensure that the owners, through their committee, remain in control of the operations and decisions of the body corporate.

All of the owners of the other lots, except for the owner of Lot 2, have countersigned the application in consent to the order sought.

The meeting will be held as an annual general meeting, though the next annual general meeting will have to be held between 1 October 2003 and 31 December 2003, the end of the financial year being 30 September in accordance with the legislative (end of the month before the month in which the scheme was established). The budget at the meeting (group insurance, maintenance, administration costs etc) will need to be set out accordingly.

DETERMINATION:

The applicant and the other 5 consenting owners constitute all but one of the owners comprising the body corporate, and therefore I am satisfied that an order should be made in the terms sought, in order to put the body corporate onto a proper legal footing so that it may administer its affairs in accordance with the legislation.