Sovereign - Surfers Paradise [2004] QBCCMCmr 129 (4 March 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Sovereign Management (QLD) Pty Ltd, the owner of lot 1

I hereby order that Ernst Body Corporate Management Pty Ltd (the appointee) of 1 Blue Rd, Laidleyof Southport, Queensland is appointed to call, hold and chair a general meeting (the meeting) of Sovereign – Surfers Paradise within 6three (3) months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting, and the election of the executive members of the committee and the ordinary members of the committee, if any, who shall hold such positions, subject to section 23 of the Body Corporate and Community Management (Accommodation Module) (the accommodation module), until the next annual general meeting is held.

I further order that, for the purposes of convening, holding and chairing the meeting, the appointee shall have all the powers, authorities, duties and functions of the chairperson, secretary and treasurer of the body corporate, with the exception of the following powers -

1. to further delegate any of those powers, authorities, duties and functions to another; or
2. to make any decision on a restricted matter within the meaning of section 24 of the accommodation module; or
3. to incur expenditure, in respect of a single project, beyond the relevant limit for committee spending.

I further order that within seven (7) days of the appointee receiving a copy of this order, the appointee must give a copy of this order to each person whose name appears on the roll as the owner of a lot included in the scheme (lot owners).

I further order that lot owners shall have the right to submit to the appointee, motions for inclusion on the agenda for the meeting; and

a) if the lot owner is an individual - to nominate the lot owner or another individual for election as a member of the committee; and
b) if the lot owner is not an individual - to nominate an individual for election as a member of the committee;

Provided that

a) the motions and / or nominations are received by the appointee within 7twenty-one (21) days from the date of this order; and
b) the motions and / or nominations are otherwise in accordance with the requirements of the standard module;

then the appointee shall include the motions on the agenda of the meeting, or nominations on the ballot for election as members of the committee.

I further order that the appointee shall not give notice of the meeting until after the expiration of 14twenty-eight (28) days from the date of this order.

I further order that -

a) at least 7twenty-one (21) days notice of the meeting must be given to lot owners,
b) notice of the meeting is to be given in accordance with section 40 of the accommodation module;
c) the agenda of the meeting must include the items set out in section 43(2) of the accommodation module, and the meeting may determine any other motion validly before it; n
d) the procedure for the conduct of the election for the committee at the meeting shall be by open ballot in accordance with section 15 of the accommodation module; and
e) except as provided for in this order, the meeting and all related matters must be conducted in accordance with the accomodation module.

I further order that the appointee shall hold the appointment for the period beginning from the date of this order until the completion of the meeting.

I further order that until such time as the annual general meeting of the scheme is called and held, the appointee shall have the power to pay all accounts submitted to the appointee for payment by Service Contractors, provided that payments to itself in its capacity as body corporate manager, or for undertaking this appointment, shall be subject to subsequent ratification by the body corporate in general meeting.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0052-2004

"Sovereign - Surfers Paradise" CTS 30010

The applicant, Sovereign Management (QLD) Pty Ltd, the owner of lot 1, has sought the following interim and final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Section 276(1) of the 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

(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)).

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. 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.

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

The Body Corporate and Community Management Act (Accommodation Module) (the Accommodation Module) section 58 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. A general meeting (which includes an annual general meeting) may be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions (see section 38(1) of the Accommodation Module). Moreover, the agenda for an annual general meeting must include the items set out in sections 43(2) and (3) of the Accommodation Module.
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The scheme

The scheme is a subdivision of 157(?) lots registered under a building unit plan (now a building format plan). The regulation module applying to the scheme is the accommodation module.

The application and submissions

The applicant states in its grounds –

This office sought submissions in respect of the application from all owners in the scheme. Two submissions were received from owners. One included no view or opinion of the application but simply returned the submission response form. The other provided as follows –

Determination

As will be clear from the submission process, this office sought the views of all owners to the proposed appointment. Only one responded meaningfully, and even this response was not specifically on the issue of the proposed appointment.

In the circumstances, there is no committee of the body corporate. Consequently there is no means by which a general meeting can be called. Given this, I consider that the appointment proposed is necessary to authorise the appointee to convene a general meeting of the scheme. At this meeting, a committee must be elected. I have allowed a three month period for this meeting to be held.

In the meantime, the appointee will be authorised to manage the scheme as the committee. Given that the appointee is the current body corporate manager for the scheme, I consider that the appointment is appropriate. All owners will be entitled to submit motions for inclusion on the agenda of the general meeting, and to nominate for the committee. I recommend to all owners that they take an active involvement in this process, as without a properly elected committee a scheme cannot operate effectively.

Number of Scheme:	30010
Name of Scheme:	Sovereign - Surfers Paradise
Address of Scheme:	138 Ferny Avenue, SURFERS PARADISE QLD 4217

1.	Pay all accounts submitted to them for payment by Service Contractors;
2.	Call any necessary meetings to meet the requirements of the (Act and regulations); and
3.	Carry out all other duties of the body corporate committee.

a)	withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from 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 to take stated action to help perform the work the administrator is required to perform; and
c)	fix the administrator’s remuneration.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sovereign - Surfers Paradise [2004] QBCCMCmr 129 (4 March 2004)