92 Moore Street Trinity Beach [2003] QBCCMCmr 48 (4 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0514-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1083
Name of Scheme:	92 Moore Street Trinity Beach
Address of Scheme:	92 Moore Street, TRINITY BEACH QLD 4879

TAKE NOTICE that pursuant to an application made under the abovementioned Act by T W HEDLEY (INVESTMENTS) PTY LTD, the owner of all Lots 1 to 24,

I hereby order that – 1. Body Corporate Services Pty Limited, PO Box 5134 Cairns Qld 4871, is appointed Administrator to call, hold and chair a general meeting ("the meeting") of the body corporate within three (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 – 1. For the purpose of calling, holding and chairing the meeting, the Administrator shall have all of 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 these powers to another person; or • To incur expenditure apart from that necessary for the calling and holding of the meeting. 2. Under section 42(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"), no notice of the meeting need be given. 3. The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, including a consideration of those matters set out in section 45 of the Standard Module and any other appropriate provision relating to meetings under Part 4 of the Standard Module. 4. The meeting may consider any other motion before it. I further order that for the purposes 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 0514-2003

"92 Moore Street Trinity Beach" CTS 1083

The applicant, T W Hedley (investments) Pty Ltd of all lots, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"That Body Corporate Services be appointed for the purposes of holding a meeting and the appointment of a committee."

JURISDICTION:
This application concerns a failure by the body corporate to call and hold annual general meetings for some years, as required by the legislation. It is therefore a matter which comes within the dispute resolution provisions of the Act (see sections 182, 183 and 223 and Schedule 5 of the Act).

Specifically, without limiting the power of an adjudicator to make an order under section 276(1), an 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 (see section 23 of Schedule 5 of the Act).

General powers of an Adjudicator in making an order:
Section 276(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 (see section 276(2)).

An order appointing an administrator may be the only order the adjudicator makes for an application (see section 276(4) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (see section 284 of the Act).

APPLICATION:
"92 Moore Street Trinity Beach" was registered as a building unit plan (now termed a building format plan) on 6 March 1986, and 24 lots.

The applicant submits that all the lots in the scheme were previously owned by the one party and the body corporate had not been operating for some years. It is unknown whether the statutory first annual general meeting was held or not. The applicant has purchased all of the lots and wishes to establish the body corporate on a proper legal footing, including the establishment of proper records.

DETERMINATION:
In the circumstances, I am satisfied that an order should be made; Body Corporate Services Pty Limited has consented in writing to the appointment. I have therefore ordered that a meeting be held which shall be an annual general meeting. The meeting will allow the body corporate to properly establish itself to administer its affairs in accordance with the legislation.

As the scheme was established under the previous legislation, I have also made provision for future annual general meetings to be determined relative to the date of the meeting ordered – this will also enable a full financial year budget to be considered at the meeting. 2n