129 Eugaree [2003] QBCCMCmr 555 (5 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0343-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22817
Name of Scheme:	129 Eugaree
Address of Scheme:	129 Eugaree Street SOUTHPORT QLD 4215

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

Geoffrey Kempe, the Company Nominee of the Owner of Lot 4 and Co-owner of Lot 3:

I hereby order that-

1.	Alan Buckle of Ernst Body Corporate Management Pty Ltd, Level 3, 140 Bundall Road Bundall, is appointed as Administrator to call, hold, and chair an annual general meeting ("the meeting"), of the "129 Eugaree" 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 all 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 14 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 0343-2003

"129 Eugaree" CTS 22817

1.	Order sought

The Applicant, the Company Nominee of the Owner of Lot 4 and a Co-owner of Lot 3, has sought the following adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the BCCM Act"), quote-

"That Alan Donald Buckle of Ernst Body Corporate Management Pty Ltd be appointed as an Administrator for the purposes of convening and attending to associated activities, the First Annual General Meeting for the Body Corporate."

The Applicant has also sought the above as an interim adjudicator’s order.

Section 276(1) of the BCCM Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 279(1) of the BCCM Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

2.	Scheme details

The "129 Eugaree" community titles scheme was originally created under a group titles plan of subdivision (now known as a standard format plan), registered on 9 May 1996. The scheme consists of 4 lots and common property. The community management statement for "129 Eugaree" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

3.	Application details

This dispute resolution application was made on 2 June 2003. Also on 2 June 2003, a staff member of this Office contacted the Applicant on behalf of the Commissioner for Body Corporate and Community Management and requested further details in relation to the application, including contact details for the other lot owners. The Applicant responded to this request by way of facsimile dated 4 June 2003.

On 5 June 2003, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

4.	Determination

At the time of registration of "129 Eugaree", 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 Applicant indicates that a first annual general meeting of the "129 Eugaree" Body Corporate has not been held to date. The Applicant has also provided the written consent of each of the other lot owners to this application. I also note that the Applicant has provided Mr Buckle’s written consent to the proposed appointment as Administrator for the purposes of convening a first annual general meeting of the Body Corporate.

In the circumstances, I am satisfied that it is necessary, and proper for me to make the order sought by the Applicant. It is not necessary for me to make an interim order in respect of this application, as I am satisfied that a final order should be made at this time. I have also made 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