Bougain-Villea [2003] QBCCMCmr 365 (4 February 2003)

Last Updated: 7 September 2007

REFERENCE: 0795-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	995
Name of Scheme:	Bougain-Villea
Address of Scheme:	11 Cavendish Street TOWNSVILLE QLD 4812

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Helen Dowling, the Owner of Lot 1

I hereby order that-

1.	Rosemary Kingsberry of Kingsberry Body Corporate Management, 108A Charters Towers Road, Hermit Park, is appointed as Administrator to call, hold, and chair an annual general meeting ("the meeting"), of the "Bougain-Villea" Body Corporate in accordance with this order and within 3 months of the date of this order.
2.	The Administrator shall hold the appointment for the period beginning on the date of this order, until the close of the meeting ordered to be held.

I further order that within 7 days of the date of this order, the Administrator shall provide a copy of this order and the accompanying statement of reasons to the owners of each lot included in the scheme.

I further order that-

1.	For the purpose of calling, and chairing the meeting, the Administrator shall have all the powers of 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 reasonably 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.	Within 14 days of the date of this order, the Administrator shall provide lot owners with a written invitation to submit motions and nominations for committee positions for consideration at the meeting.
3.	The Administrator must prepare an agenda for the meeting, including but not necessarily limited to, the matters set out in section 45 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").
4.	The Administrator must issue a notice of meeting in accordance with section 42 of the Standard Module, however the notice shall not be sent to owners until at least 14 days have expired after the invitation in paragraph 2 (above) is distributed to owners.
5.	The meeting must be held at least 14 days after notice of the meeting is given to the lot owners.
6.	Except as provided in this order, the meeting must be called and conducted in accordance with the BCCM Act and the Standard Module.

I hereby order that for the purposes of the Act, and pursuant to section 229 of the Act, the next financial year-end date of the Body Corporate shall be 31 December 2003, in place of the previous financial year-end date.

I further order that thereafter, each successive financial year for the Body Corporate, shall commence on 1 January, and terminate on 31 December.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0795-2002

"Bougain-Villea" CTS 995

1. Orders sought

This application was made on 23 December 2002. Originally, the Body Corporate Manager submitted this application, and was identified as the Applicant. The Body Corporate Manager sought the following interim orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"(1) To re-establish FYE to 31 December.

(2) To have proprietors pay an amount of $500 per lot in order that insurance cover may be kept current, and other accounts paid until an EGM can be held and management ratified and a budget passed."

Given the nature and urgency of the circumstances of issues raised in the application, that is the lapsed building insurance, the Commissioner referred the application to me for consideration for an interim order, notwithstanding that a number of issues were identified in the application that would need to be addressed before a final determination was made.

On 24 December 2002, I issued the following interim orders regarding the application:

"I hereby order that the owners of each lot included in the Bougain-Villea community titles scheme must each immediately provide Rosemary Kingsberry of Kingsberry Body Corporate Management, with one quarter of the cost of the premium for the Body Corporate’s insurance policy.

I further order that as soon as practicable after receipt of owners’ contributions to the insurance premium, Rosemary Kingsberry, of Kingsberry Body Corporate Management, shall pay the premium for the Body Corporate’s insurance policy."

On 16 January 2003, the Commissioner for Body Corporate and Community Management wrote to the Body Corporate Manager, and requested further information, and amendment of the application. Importantly, the Commissioner requested clarification of the final orders sought through the application. The Commissioner also identified that the Body Corporate Manager may not have proper standing to make the application in light of section 182 of the Act.

The application was amended with the Owner of Lot 1 being identified as the Applicant, and signing the application form. The Owner of Lot 1 has sought the following final orders in relation to the application:

"(1) To re-establish FYE (financial year-end) to 31 December

(2) That Rosemary Kingsberry be appointed as administrator to convene meeting to re-establish Body Corporate."

2. Jurisdiction

Section 223(1) of the BCCM Act provides that adjudicators may make just and equitable orders to resolve disputes in community titles schemes. 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, and without limiting the power of an adjudicator to make an order under section 223(1), an adjudicator may order a 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 (section 223(3)(p)). Additionally, the adjudicator may make an order appointing an administrator, and authorise the administrator to perform obligations of the body corporate, or a member of its committee under the Act or the community management statement (section 223(3)(v)).

Section 229 of the Act provides that an adjudicator (with the consent of the relevant body corporate) may make an order changing a body corporate’s financial year.

An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

2">3. The "Bougain-Villea" community titles scheme

The "Bougain-Villea" community titles scheme consist of 4 lots and common property, and was originally created under a building units plan of subdivision (now known as a building format plan of subdivision), registered on 22 January 1987. The community management statement for "Bougain-Villea" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

4. Meetings

In the supporting grounds to the application, the Applicant indicates that records have not been maintained in accordance with the requirements of the Act. I understand that while the Body Corporate has certainly conducted some meetings in the past, it is unclear whether the Body Corporate has regularly conducted its annual general meetings in the time frames set out in the legislation.

Section 60 of the Standard Module imposes a continuing obligation on bodies corporate to convene and hold an annual general meeting within 3 months of the end of each of the scheme’s financial years. Part 9 of the Standard Module makes provision for a number of administrative matters concerning bodies corporate and sets out the records and registers that must be maintained by bodies corporate.

If a body corporate fails to regularly conduct its annual general meetings as required by the legislation, it is necessary for an adjudicator to appoint an administrator to convene a general meeting to re-establish the body corporate on a proper legal footing, and to facilitate the body corporate conducting its affairs in accordance with the legislation.

In the circumstances, I am satisfied that it is reasonable and proper for me to appoint Ms Kingsberry as Administrator for the purposes of convening a general meeting of the "Bougain-Villea" Body Corporate. This meeting will enable owners to make decisions regarding the future operation of the Body Corporate, including the selection of a committee, and the establishment of full records and registers.

5. Financial Year

In accordance with the Act, bodies corporate operate on financial years that are not necessarily the same as the normal business financial year, that being 1 July to 30 June. Establishing the financial year of a body corporate is important as it determines the financial reporting period for the body corporate, and the timing of the body corporate’s annual general meetings.

As stated previously, section 229 of the Act provides that an adjudicator (with the consent of the body corporate) may make an order changing a body corporate’s financial year. In this instance, each current lot owner has signed a statement that the end of the Body Corporate’s financial years should be 31 December.

I am satisfied that it is reasonable and proper for me to issue an order setting the end of the Body Corporate’s financial years to 31 December. In accordance with section 60 of the Standard Module, the Body Corporate should hold its annual general meetings in January, February or March of each year. However, the annual general meeting authorised by this order should be held in the time frame set by this order, that is, the meeting should be called and held within 3 months of the date of this order.

6. General comments

As a final note, I would like to point out to the Owners that the Commissioner’s Office offers an information service for anyone involved in Queensland community titles schemes. The Information Service provides information on the Act and regulation modules primarily in response to enquiries made to its freecall telephone service. The Information Service can be contacted on 1800 060 119 during business hours.