Pacific Palms Bucasia Holiday Units [2004] QBCCMCmr 151 (22 March 2004)

Last Updated: 30 September 2005

REFERENCE: 0164-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17074
Name of Scheme:	Pacific Palms Bucasia Holiday Units
Address of Scheme:	4 Symonds Street BUCASIA QLD 4750

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ronald Dove and Stella Dove, the Owners of Lots 1, 2, 3, 4, 5, 7 and 8:

I hereby order that: 1. Maxine Jane Romagnolo of Macrossan & Amiet Solicitors, 55 Gordon Street Mackay, is appointed as Administrator to call, hold and chair an annual general meeting of the "Pacific Palms Bucasia Holiday Units" 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: 1. For the purposes of calling, and chairing the meeting, the Administrator shall have all of the powers of chairperson, secretary and treasurer of the Body Corporate, and of the Body Corporate 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, and apart from 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 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. 4. Notwithstanding section 42(4) of the Standard Module, the Administrator shall issue the lot owners with a notice of the meeting in accordance with sections 42(1), (2) and (3) of the Standard Module. 5. The meeting must be held at least 24 hours after the lot owners receive notice of the meeting. 6. Except as provided in this order, the meeting must be called and held 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 0164-2004

"Pacific Palms Bucasia Holiday Units" CTS 17074

1.	The application

On 17 March 2004, the Applicants (the Owners of Lots 1, 2, 3, 4, 5, 7 and 8), submitted an application to the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 ("the BCCM Act").

The Applicants state that they are seeking the appointment of Maxine Jane Romagnolo "as adjudicator for the purposes of calling an Annual General Meeting to appoint a Committee."

2.	Jurisdiction

Section 276(1) of the BCCM Act allows adjudicators to make just and equitable orders to resolve disputes in community titles schemes. 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, and without limiting the power of an adjudicator to make an order under section 276(1), an adjudicator may order a 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. Additionally, an adjudicator may make an order appointing an administrator, and authorise the administrator to perform obligations of a body corporate, a committee, or a member of a committee, under the BCCM Act or the community management statement (Schedule 5 of the Act).

I have taken the Applicant’s reference to an "adjudicator" to be a reference to an administrator. As a result, and on the basis of the provisions referred to above, it seems to me that the application falls within the jurisdiction of a departmental adjudicator.

3.	The "Pacific Palms Bucasia Holiday Units" community titles scheme

Department of Natural Resources, Mines and Energy records show that the "Pacific Palms Bucasia Holiday Units" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 17 May 1995. The scheme consists of seven lots and common property.

A standard community management statement was recorded for "Pacific Palms Bucasia Holiday Units" on 15 July 2000. The community management statement indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 applies to the scheme.

4.	Determination

At the time of registration of "Pacific Palms Bucasia Holiday Units", 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 after 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 a 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 this application, the Applicant indicates that while an annual general meeting was held on 26 May 1995, no further annual general meetings have been held since that time. The Applicants have provided Ms Romagnolo’s written consent to the proposed appointment.

In the circumstances, I am satisfied that it is necessary and appropriate for me to appoint Ms Romagnolo as Administrator for the purpose of convening an annual general meeting of the Body Corporate. I have also made an order setting the future financial years of the Body Corporate.