O'Halloran Lodge [2003] QBCCMCmr 389 (18 February 2003)

Last Updated: 7 September 2007

REFERENCE: 0105-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20195
Name of Scheme:	O'Halloran Lodge
Address of Scheme:	211 Mt Cotton Road CAPALABA QLD 4051

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

Steven McCormick and Nicole McCormick, the Owners of Lot 2


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 "O’Halloran Lodge" 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 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").

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.	The Administrator shall prepare an agenda for the meeting, including but not necessarily limited to, the matters set out in section 45 and section 62(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").
3.	The meeting may also consider any other matter before it, provided both lots are represented at the meeting.
4.	The Administrator shall issue a notice of meeting in accordance with section 42 of the Standard Module.
5.	The meeting must be held at least 7 days after notice of the meeting is given to 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 0105-2003

"O'Halloran Lodge" CTS 20195

The Applicants, the Owners of Lot 2, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the BCCM Act"), quote-

"That Ian Kenneth D’Arcy of Capitol Body Corporate Administration be appointed to convene, hold and chair 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 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 BCCM 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)).

The "O’Halloran Lodge" community titles scheme was originally created under a group titles plan of subdivision (now referred to as a standard format plan of subdivision), registered on 13 November 1991. The scheme consists of 2 lots, and common property. The community management statement for "O’Halloran Lodge" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

At the time of registration of "O’Halloran Lodge", the Building Units and Group Titles Act 1980 ("the BUGT Act") applied to the scheme. Section 29 of the BUGT Act imposed an obligation on original proprietors of schemes created under a building units plan or a group titles plan of subdivision, to convene the first annual general meeting of the body corporate within 3 months of the registration of the plan of subdivision. The intended purposes of first annual general meetings include reviewing body corporate insurance policies and budgets, deciding on committee positions, considering the by-laws for the body corporate and deciding whether or not to engage a body corporate manager for the scheme.

Section 29A(1) of the BUGT Act imposed a continuing obligation on bodies corporate to convene and hold annual general meetings. The requirement continued with the commencement of the BCCM Act in 1997. Specifically, section 60 of the Standard Module of the BCCM Act 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".

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 supporting grounds to the application, the Applicants indicate that the Body Corporate has not convened a general meeting since the establishment of the scheme. The Applicants also state that no body corporate records have been established or maintained. However, the Applicants explain that to date, the Owners of Lots 1 and 2 have shared the expenses that would ordinarily be met by the Body Corporate, and have ensured that the building has been properly maintained.

On 18 February 2003, I contacted the Owner of Lot 1 by telephone to confirm whether or not she supported the application. After discussing the implications of the application, and some general aspects of the legislation, it was my understanding that the Owner of Lot 1 agreed with the appointment of an administrator for the purposes of convening the first annual general meeting of the Body Corporate. In the course of our conversation, the Owner of Lot 1 expressed some concerns regarding body corporate contributions. This will be one of the matters for the members of the Body Corporate, that is, the Owners of Lots 1 and 2, to consider at the meeting authorised by this order.

In the circumstances, I am satisfied that it is necessary and proper for me to make the order sought by the Applicants. 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.

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 BCCM Act and regulation modules to the community, primarily by responding to enquiries made on its freecall telephone service. The Information Service has also published a number of information brochures on various aspects of the body corporate legislation, which are available free of charge. The Information Service can be contacted on (Freecall) 1800 060 119.