Island Mews [2004] QBCCMCmr 141 (15 March 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Shirley Anne Riggall, the owner of lot 3, Rachael Barbara Howick, the owner of lot 6, and Fay Lorraine Davis, the owner of lot 7

I hereby order that -

(1) Cheryl Richardson of B & D Body Corporate Management, PO Box 539, Cleveland Qld is appointed as administrator to call, hold and chair an annual general meeting ("the meeting") of Island Mews within three (3) months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting and for the election of committee members.
(2) The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered.

I further order that within ten (10) days of the date of this order the administrator must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme ("lot owners").

I further order that –

(1) For the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of the 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 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 nomination and election procedures for the election of committee members shall be in the same manner as provided for in sections 14 and 15 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

(3) The administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting.

(4) The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 42 and 45 of the Standard Module and all other provisions relating to meetings under Part 4 of the Standard Module.

(5) The administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.

I further order that the owner of lot 1, Enid Helen Margaret Lillistone, shall, within 7 days of the date of this order, hand to Cheryl Richardson, all body corporate books and records, including all banking records and details, presently in Mrs Lillistone’s possession or under her control.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0797-2003

"Island Mews" CTS 19968

The applicants have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

An order to appoint Cheryl Richardson of B & D Body Corporate to take over the management of Island Mews Body Corporate and that B & D Body Corporate convene a meeting.

B & D Body Corporate also be given the power to collect all books and records from unit 1.

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)).

In the supporting grounds, the applicants provided instances where body corporate business has not been conducted in accordance with the requirements of the legislation as justification for their request for the appointment of a body corporate manager. These included:

All owners were invited to respond to the application. Submissions were received from three owners, two of whom opposed the application. The third owner expressed the view that a proper examination of the facts should take place, after which appropriate action, if necessary, should be taken.

The owner of lot 4, Mrs Joan Wood, stated that she does not wish to have a body corporate manager appointed, particularly because of the cost involved. Mrs Wood also stated that the annual general meeting held on 22 November 2003 was abandoned because of the unruly behaviour of the applicants at that meeting. Mrs Wood further stated that no request by her for gardening services has ever been ignored or refused. Mrs Wood said that she looked forward to a spirit of co-operation between her neighbours within the scheme, so that a fair resolution of the issues could be reached as quickly as possible.

The owner of lot 1, Mrs Helen Lillistone, objected strongly to certain of the allegations made by the applicants. She also stated that she has been attending to the administration of the body corporate for some time, and has paid bills, collected, receipted and banked levies, and solved whatever problems that have arisen.

The owner of lot 8, Mr Hazen Rota, expressed the view that if the body corporate spending which has taken place is justified, and there has been no defalcation, then all that may be required is "a tidy up in procedure". Mr Rota did however concede that the books "should be looked at by someone independent", but also stated that those who have refused to pay their levies should do so, as "this tit for tat nonsense is not going to solve the problem".

One of the applicants, Mrs Davis, replied to the submissions. Mrs Davis concluded that an independent person should be appointed to convene a meeting and resolve the matter as soon as possible.

It is evident from the material provided with the application that the meeting which was held on 22 November 2003 did not comply with the legislative requirements for an annual general meeting. Firstly, the meeting material appears to have been incomplete. Secondly, the following statutory motions were not considered:

Thirdly, no committee election took place. It appears that the only committee nomination received was from Mrs Lillistone for the positions of secretary and treasurer. However, what is not clear is whether owners were invited to nominate for committee positions, as required by section 13(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module), by which this scheme is regulated. [Note: The Standard Module was extensively amended with effect from 1 December 2003, and the relevant section is now section 13(4), but the requirements are still the same].

There is also some uncertainty as to whether the meeting was abandoned, or whether it concluded. I have conflicting statements in that regard, and the only way to resolve the issue would be for further evidence to be provided, either in the form of a statutory declaration , or by way of evidence on oath, the latter being a means of obtaining evidence which is not available to me under the Act. I do not propose to make a finding either way, as I intend to order that a further meeting be held in any event, for reasons which follow.

In deciding this application, I am mindful of the views expressed by His Honour Judge Boulton DCJ in Chen and Body Corporate for Wishart Village CTS 19482 (District Court Brisbane 29 May 2001):

The very detailed provisions of the standard module regulation to which I have referred above make it almost inevitable that from time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.

Whilst the actions taken by Mrs Lillistone in calling the meeting were undoubtedly taken bona fide, I consider that there has been such substantial non-compliance with the requirements of the legislation in relation to the annual general meeting that a further meeting addressing those issues must be held. I therefore propose to order that Cheryl Richardson of B&D Body Corporate Management (B&D) call and hold an annual general meeting. I further propose to order that Mrs Lillistone shall within 7 days of the date of this order hand all books and records of the body corporate presently in her possession to Ms Richardson.

It should be noted that, contrary to the applicants’ contention, B&D has not yet been engaged as body corporate manager for this scheme as there was no motion to approve such engagement on the agenda of the meeting held on 22 November 2003 – (see section 52(5)(a) of the Standard Module.)

Section 87 of the Standard Module also provides as follows:

(3) However, subsection (2)(b) does not apply if all the lots included in

Accordingly, Mrs Lillistone was perfectly within her rights not to hand over the books and records to Ms Richardson, as demanded by the applicants after the meeting.

If any owner is desirous of engaging a body corporate manager, then an appropriate motion, accompanied by the information required under section 87(2)(c) (above), should be forwarded to Ms Richardson within the time specified in this order so that it can be listed on the agenda of the meeting.

Number of Scheme:	19968
Name of Scheme:	Island Mews
Address of Scheme:	50 Island Street, CLEVELAND QLD 4163

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Island Mews [2004] QBCCMCmr 141 (15 March 2004)