No. 9 Port Douglas Road [2003] QBCCMCmr 444 (28 March 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0180-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4871

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

Tecelec (Qld) Pty Ltd, the owner of lot 4, and Myles Ian Forsyth & Deborah Anne Forsyth, the co-owners of lot 5



I hereby order that the application for an interim order that the annual general meeting held on 28 March 2003 was invalid, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0180-2003

"No. 9 Port Douglas Road" CMS 24368

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

Rule the annual general meeting to be held on 28/03/03 invalid.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicants state that the annual general meeting should have been held within 3 months after the end of the scheme’s financial year, which in this case ended on 30 November 2002. The applicants contend that the delay in calling the meeting was brought about by the chairperson/secretary/treasurer’s desire to allow time for his solicitors to finish drafting the caretaking and letting agreements.

Submissions were received from the committee, through its solicitor, Ms Ros Janes, and from Famestock Pty Ltd, one of the owners.

Ms Janes pointed out that the reference in the application to the Standard Module was incorrect, in that this scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module). Ms Janes further stated that she had been instructed that the annual general meeting had not been called within the prescribed time as the committee was awaiting the outcome of an order of an adjudicator in relation to the issue of the validity of the committee (0576-2002). It was further stated that the order was received on 6 February 2003, and it was not possible to then call a meeting by 28 February 2003. In any event, it was contended that granting the order sought would achieve no purpose, particularly as no order can "wind back the clock" to have the meeting held within the prescribed time.

The submission from Famestock largely echoed the points made in Ms Janes’ submission.

Ms Janes is correct in stating that no order can redress the issue of an annual general meeting having been held outside the prescribed time. Whilst section 58 of the Accommodation Module requires that an annual general meeting must be held within 3 months after the end of each financial year, the failure to hold the meeting within that time frame does not, of itself, invalidate the meeting so held. The applicants are correct in stating that it is a breach of the regulations, however, this office does not have an enforcement role, nor does it impose penalties for failing to comply with the Act or the regulations.

I note that, apart from the timing of the notice of meeting, other requirements for an annual general meeting appear to have been met, notably that at least 21 days notice of the meeting was given; statutory motions were placed on the agenda and committee elections were provided for. Of course, there may be other matters of which I am currently unaware, but on the face of the material before me, I am not persuaded that the meeting should be invalidated.
Accordingly, I accept Ms Janes submission that the order sought would achieve no purpose, and I therefore propose to dismiss the application. However, in a separate application, (0182-2003), I have ordered that motions 6 and 8 considered at this same annual general meeting were at all times void.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the parties consider that an appeal of this decision is warranted, then they should appeal the interim order.