7 Birt Avenue [2003] QBCCMCmr 37 (25 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0458-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27656
Name of Scheme:	7 Birt Avenue
Address of Scheme:	7 Birt Avenue SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Trevor Francis Rex & Simone Leigh Rex, the co-owners of lot 1

I hereby order that – (1) Trevor Francis Rex and Simone Leigh Rex of Villa 1, 7 Birt Avenue, Budds Beach, QLD 4217 are appointed Administrators to call, hold and chair an annual general meeting ("the meeting") of "7 Birt Avenue" within one (1) month 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 Administrators shall hold appointment for the period beginning from the date of this order until the close of the meeting ordered to be held. (3) The owners of both lots will be entitled to submit motions to the Administrators for inclusion on the agenda of the notice of meeting, and provided the motions are received by the Administrators within ten (10) days of the date of this order, the motions will be including by the Administrators on the agenda of the meeting. I further order that – (1) For the purpose of calling, holding and chairing the meeting, the Administrators 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 Administrators must not give notice of the meeting until ten (10) days after the date of this order, and shall give at least one (1) weeks' written notice 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. I further order that, for the purpose of determining the future financial year of the body corporate, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0458-2003

"7 Birt Avenue" CTS 27656

The applicants, Trevor Francis Rex & Simone Leigh Rex, the co-owners of lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We wish to hold a body corporate meeting so we can elect secretary and treasurer and meet the legislative requirements for the body corporate.

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

(c) a claimed or anticipated contractual matter about-

(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)).

Specifically, without limiting the power of an adjudicator to make an order under section 276(1), an adjudicator may make an order –

... appointing an administrator, and authorising the administrator to perform--
(a) obligations of the body corporate, its committee, or a member of the committee under this Act or the community management statement; or
(b) obligations of the body corporate under another Act.

Section 301 of the Act, headed Appointment of Administrator provides –

301 Appointment of administrator
(1) This section applies if an order is made under this chapter appointing an administrator.
(2) The administrator has the powers given to the administrator under the order.
(3) Without limiting subsection (2), the power may include power to levy a special contribution against the owners of lots included in a community titles scheme to meet the cost of complying with obligations to which the order relates and the costs of the administration.
(4) The order may--
(a) withdraw all or particular stated powers from the body corporate, a body corporate manager to whom a power has been given under section 119 or 120, or stated officers of the body corporate
until the administrator has taken the necessary action to secure compliance with the obligations; and
(b) require officers of the body corporate or a body corporate manager mentioned in paragraph (a) to take stated action to help perform the work the administrator is required to perform; and
(c) fix the administrator’s remuneration.

(5) The administrator’s remuneration is to be paid out of the funds of the body corporate.
(6) This section does not apply to the enforcement of a monetary obligation of the body corporate arising under another Act unless it is an enforceable money order.

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.

The applicants state that initially the body corporate was not formalised as the original owner owned both lots. The applicants then request -

We wish to formalise the body corporate structure and hold a general meeting. The other owner is in agreement. However as no secretary or treasurer has ever been elected, I have been instructed ... to fill in a dispute resolution form seeking authority to call (a) initial body corporate meeting.

The owner of lot 2, Philip Byers has consented in writing to the application that the applicants be given authority to convene a general meeting.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold a annual general meeting. I have also made provision for future annual general meetings to be determined based on the date of the meeting ordered to be held.Rosetta G JorgensenUnit 1, 17 Oxford Street, Rockhampton Qld 4700xxxxxx2n