Tree Haven [2003] QBCCMCmr 370 (6 February 2003)

Last Updated: 7 September 2007

REFERENCE: 0077-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15156
Name of Scheme:	Tree Haven
Address of Scheme:	53 Esmond Street, EMERALD QLD 4720

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

James Stanislaus Brennan, the co-owner of lots 1 and 2

I hereby order that –

(1)	James Stanislaus Brennan of PO Box 1231, Emerald Q 4720 is appointed as administrator to call, hold and chair an annual general meeting ("the meeting") of "Tree Haven" 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.

(2)	The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered.

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 ("lot owners").

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 administrator must give at least two (2) weeks written notice inviting owners to submit motions for inclusion on the agenda of the meeting.

(3)	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.

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

I further order that the meeting shall be deemed to be the first annual general meeting of the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0077-2003

"Tree Haven" CTS 15156

The applicant has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That Jim Brennan be appointed to convene a meeting of the body corporate.

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 (section 223(3)(p)). 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 (section 223(3)(v)).

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 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 62 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) provides that the original owner must call and hold the first annual general meeting of the body corporate within one month after the first of the following to happen –

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.

Moreover the agenda for the meeting must include the items set out in section 62(3) of the Standard Module. If the original owner does not call and hold the first annual general meeting as required by the section, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first annual general meeting within a stated time (section 62(4)).

In the supporting grounds, the applicant states that the body corporate has not met since its inception, and although there are no disputes, it needs to be put in order. The applicant requests an order to call a meeting to allow office bearers to be elected.

The applicant is the co-owner of two of the three lots in the scheme. The owners of the other lot have consented to the order being sought.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 62(4) of the standard module. The appointment is necessary to authorise a person to call and hold the first annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.

In relation to the committee, the applicant should note the provisions of section 11, and particularly sections 11(2)(d) and 11(4) of the Standard Module, which provide as follows:

11 When committee is chosen

(1) The choosing of the members of the committee must happen at each

annual general meeting of the body corporate.

(2) Subsection (1) does not apply for an annual general meeting if, when

the annual general meeting is held--

(a) there are only 2 lots included in the scheme, and the 2 lots are in

identical ownership; or

(b) there are only 2 lots included in the scheme, and the 2 lots are in

different ownership; or

(c) there are 3 or more lots included in the scheme, and all of the lots

are in identical ownership; or

(d) there are 3 or more lots included in the scheme, and there are

only 2 different owners for all the lots.

(3) If subsection (2)(a) or (c) applies, the committee is a committee of 1

consisting of the individual who is the owner, or the nominee of the owner,

of the lots, and the individual holds all the executive positions on the

committee.

(4) If subsection (2)(b) or (d) applies, the committee consists of

2 individuals who are owners, or the nominees of owners, of lots, and they

must decide between themselves who are to hold the positions of the

executive members of the committee (and, if they cannot agree, the

positions of the executive members are jointly held by both of them).

(5) If, under subsection (3), at the first annual general meeting of the

body corporate the committee formed at the meeting consists of only

1 individual, the committee may be chosen at an extraordinary general

meeting held before the next annual general meeting after the first annual

general meeting.

(6) This division applies to an extraordinary general meeting mentioned

in subsection (5) as if the extraordinary general meeting was the next

annual general meeting after the first annual general meeting.

(emphasis added)