Sammells Lodge [2003] QBCCMCmr 373 (7 February 2003)

Last Updated: 7 September 2007

REFERENCE: 0730-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13843
Name of Scheme:	Sammells Lodge
Address of Scheme:	20 Sammells Drive CHERMSIDE QLD 4032

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

John Falvey, the Owner of Lots 4, 5 and 6


I hereby order that-

1.	Ian D’Arcy of Capitol Body Corporate Administration, 52 Playfield Street Chermside, is appointed as Administrator to call, hold, and chair an annual general meeting ("the meeting"), of the "Sammells Lodge" Body Corporate in accordance with this order and within 3 months of the date of this order.
2.	The meeting shall be deemed to be the first annual general meeting of the Body Corporate for the purposes of the Body Corporate and Community Management Act 1997 ("the Act").
3.	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 "Sammells Lodge" community titles scheme ("the lot owners").

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 the lot owners with a written invitation to submit motions, and nominations for committee positions, to the Administrator for consideration by the Body Corporate at the meeting.
3.	The Administrator shall prepare an agenda for the meeting, including but not necessarily limited to, the matters set out in sections 45 and 62(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").
4.	The Administrator shall issue a notice of meeting in accordance with section 42 of the Standard Module; however, the notice shall not be distributed to owners until at least 14 days have passed after the invitation described in paragraph 2 above has been sent 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 Act and the Standard Module.

I further order that for the purposes of determining future financial years of the Body Corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0730-2002

"Sammells Lodge" CTS 13843

1.	Order sought

The Applicant, the Owner of Lots 4, 5 and 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"That Ian Kenneth D’Arcy of Capitol Body Corporate Administration be appointed to convene an Annual General Meeting of the Body Corporate and that such meeting be deemed to be the first Annual General Meeting of the Body Corporate."

Section 223(1) of the 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)).

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

This application was made on 3 December 2002. On 16 December 2002, the Commissioner invited the Owners of lots 2 and 3 to make a written submission about the application. The Owner of Lot 3 has made a submission supporting the application, but also raises a general concern, which I will address later in this statement of reasons.

I am aware that in the period of time since submissions have been sought, the registered ownership of Lot 1 has changed. While the new Owner of Lot 1 has not had an opportunity to make a submission about the application, I consider that it is in the interests of the Body Corporate for me to determine this application without further delay.

2.	The "Sammells Lodge" community titles scheme

The "Sammells Lodge" community titles scheme consists of 6 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 1 May 1974. The community management statement for "Sammells Lodge" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

3.	Determination

In the supporting grounds to the application, the Applicant indicates that to date owners have paid expenses that would otherwise be met by the Body Corporate.
The Applicant also confirms that the building has been maintained in a proper manner. However, the Applicant also indicates that to date, the Body Corporate has not held any general meetings, or established and maintained required body corporate records.

As stated above, "Sammells Lodge" was created by a building units plan of subdivision, registered on 1 May 1974. At the time of creation of "Sammells Lodge", the Building Units Titles Act 1965 ("the 1965 Act") applied to the scheme. The First Schedule of the 1965 Act required proprietors to hold a general meeting within 3 months after registration of the plan of subdivision creating the scheme. The First Schedule also imposed a continuing requirement on bodies corporate to conduct annual general meetings. The requirement for bodies corporate to conduct annual general meetings continued with the commencement and operation of the Building Units and Group Titles Act 1980, and is now stipulated as part of the current legislation. Specifically, section 60 of the Standard Module requires that bodies corporate call and hold an annual general meeting within 3 months after the end of each of the scheme’s financial years.

If an original proprietor, or owner, fails to convene a first annual general meeting for a body corporate, or if the body corporate fails to regularly hold its required annual general meetings, it is necessary for an adjudicator to make an order appointing an administrator to call and hold an annual general meeting of the body corporate. The purpose of such an order is 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, including by maintaining required records and registers.

In the circumstances, I am satisfied that it is necessary and proper for me to make the order sought by the Applicant. I note that the proposed Administrator, Mr D’Arcy has provided his written consent to the appointment. In addition, I intend to make an order setting the future financial years of the body corporate.

4.	General comments

In his submission about the application, the Owner of Lot 3 raises the question of protection and rights of owners when an individual owns the majority of lots. As owners are probably aware, if a person owns a majority of lots in a community titles scheme, they have significant voting influence on matters being considered by the body corporate. Indeed, for matters requiring ordinary resolutions, their voting power may decide whether or not the motion is carried. However, this power is subject to the general overriding proviso that the Body Corporate must act reasonably in carrying out its functions (section 87 of the Act). If an owner feels that a body corporate has made an unreasonable decision about a matter, the owner has a right to apply to the Commissioner’s Office for an order invalidating the decision of the body corporate. Of course, in making this type of application, the owner would need to set out the grounds and reasons supporting their position that the decision of the body corporate was unreasonable.

Finally, 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 about the Act and regulation modules to the community primarily by responding to enquiries made on its freecall telephone service, which can be contacted on 1800 060 119.