Railway Square No. 2 [2003] QBCCMCmr 493 (1 May 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0278-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27469
Name of Scheme:	Railway Square No. 2
Address of Scheme:	1 Diamond Street COOROY QLD 4563

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Railway Square

I hereby order that –

1.	Janice McCarthy of BCA Community Management Pty Ltd, PO Box 1028, Southport Q 4215 is appointed as administrator to call, hold and chair a general meeting ("the meeting") of "Railway Square" 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.

I further order that –

1.	Under section 31(4) of the Body Corporate and Community Management (Commercial Module) Regulation 1997 (the "Commercial Module") no notice of meeting need be given.
2.	The meeting must consider and determine the matters set out in section 48(3) of the Commercial Module.
3.	The meeting may consider any other motion.

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

I further order that the end of the scheme’s financial year shall be 31 March each year.

Janice McCarthy of BCA Community Management Pty LtdPO Box 1028, Southport Q 42153nil2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0278-2003

"Railway Square No. 2" CTS 27469

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

That BCA Community Management Pty Ltd be appointed as administrator of the body corporate for the purpose of convening the first annual general meeting and to determine the financial year end of the body corporate to be 31 March each year.

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 (section 276(2)).

Specifically, without limiting the power of an adjudicator to make an order under section 276(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 276(3)). 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 23 of Schedule 5).

The administrator has the powers given to the administrator under the order (section 301(2)). Section 301(4) provides that the order may –

a)	withdraw all or particular stated powers from the body corporate, a body corporate manager to whom power has been given under section 119 or 120, or 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 or a body corporate manager mentioned in paragraph (a) 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 or it may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 48 of the Body Corporate and Community Management (Commercial Module) Regulation 1997 (the Commercial 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 48(3) of the Commercial 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 48(4)).

In the supporting grounds, the applicant states that the original owner did not convene the first annual general meeting of the body corporate. The applicant further states that RJNK Enterprises Pty Ltd (RJNK) took possession as mortgagee of all lots on 5 June 2000, and does not possess any of the books and records of the body corporate. As RJNK is in the process of selling all lots it is desirous of re-establishing the body corporate’s records.

The person nominated as administrator has consented in writing to that appointment.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 48(4) of the commercial 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.Mr Bob SukicC/- PO Box 8319 Gold Coast Mail Centre Q 97263212n

The applicant has also requested that the scheme’s financial year-end date be 31 March in each year. As RJNK took possession as mortgagee on 5 June 2000, I regard this request as satisfying section 283 of the Act, and I have ordered accordingly.