Cobham Lodge [2003] QBCCMCmr 51 (5 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0518-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11985
Name of Scheme:	Cobham Lodge
Address of Scheme:	104 Ryans Road NORTHGATE QLD 4012

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Eunice May STEWART, the owner of all Lots 1 to 5,

I hereby order that – 1. Ian Kenneth D’ARCY of Capitol Body Corporate Administration, PO Box 2362 Chermside Centre Qld 4032, 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. The meeting must consider and determine the matters set out in section 62(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). 3. 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. 4. 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. 5. The meeting may consider any other motion before it. I further order that the meeting shall be deemed to be the First Annual General meeting of the body corporate. 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 0518-2003

"Cobham Lodge" CTS 11985

The applicant, Eunice Stewart of all Lots 1 to 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"The applicant seeks an Order that Ian Kenneth D"Arcy of Capitol Body Corporate Administration be appointed to convene, hold and chair an Annual General Meeting and that such meeting be deemed to be the First Annual General Meeting."

JURISDICTION:
This application concerns a failure by the body corporate to call and hold the statutory First Annual General Meeting or any annual general meetings, or establish proper body corporate records, as required by the legislation. Jurisdiction is specifically provided under section 62(4) of the Standard Module regulations for the appointment of a person to call a meeting deemed to be the First Annual General Meeting; see also the general jurisdiction provisions under the dispute resolution provisions of the Act regarding subsequent non-compliance by the body corporate (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:
"Cobham Lodge" was registered as a building unit plan (now termed a building format plan) on 11 January 1979, and comprises five lots.

The applicant submits that she and Neville Stewart (dec’d) were the original owners of all of the lots, but that no meetings were ever held or records established as required by the legislation. The applicant wishes to sell the lots and needs to first establish the body corporate as an operating entity administering itself in compliance with the legislation. To this purpose, the applicant seeks the appointment of a suitable person to hold a meeting deemed to be the First Annual General Meeting, to establish proper records, and generally place the body corporate on a proper legal footing.


DETERMINATION:

In the circumstances, I am satisfied that an order should be made and the appointee has consented in writing to the appointment. 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