Cathalpa [2004] QBCCMCmr 23 (13 January 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by MARIVA INVESTMENTS PTY LTD A.C.N. 060 876 226, as the owner (being entitled to be the registered owner) of all Lots 1 to 8,

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 0831-2003

"Cathalpa" CTS 14183

JURISDICTION:
Information provided by its solicitor is that Mariva Investments Pty Ltd has settled the acquisition of all of the lots in the scheme from the present registered owner, D A Pavilions Pty Ltd, and is therefore the owner of the lots as defined in Schedule 6 to the Act. It therfore has standing to make this application.

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:
"Cathalpa" was registered as a building unit plan (now termed a building format plan) on 6 June 1973 and comprises eight lots.

The applicant submits that the previous owner DA Pavilions Pty Ltd had no body corporate records to pass on settlement and it appears that no general meetings have been held or records established.

The present owner intends to demolish the building and build anew, and wishes to establish a body corporate as an operating entity so that the necessary resolutions can be passed to extinguish the plan. For 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; 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.

Although the owner’s intention is to extinguish the plan, nevertheless I consider it prudent to provide for a convenient financial year in case this does not occur. As the scheme was established under the previous legislation, I have therefore 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

Number of Scheme:	14183
Name of Scheme:	Cathalpa
Address of Scheme:	78 The Esplanade BURLEIGH HEADS QLD 4220

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Cathalpa [2004] QBCCMCmr 23 (13 January 2004)