Tall Pines [2004] QBCCMCmr 236 (6 May 2004)

Last Updated: 30 September 2005

REFERENCE: 0278-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26765
Name of Scheme:	Tall Pines
Address of Scheme:	157 Housden Street, NORTH ROCKHAMPTON QLD 4701

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Allansford Nominees Pty Ltd, the owner of lot 25

I hereby order that - (1) Beverly Joan McKinnon of McKinnon Body Corporate Administration, PO Box 2224, Bundaberg Q 4670, is appointed as administrator to call, hold and chair an annual general meeting ("the meeting") of Tall Pines 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 the election of a committee. (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 seven (7) 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. (1) The administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting. (2) 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. (3) The administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0278-2004

"Tall Pines" CTS 26765

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that Beverly Joan McKinnon of McKinnon Body Corporate Administration be appointed to convene a general meeting of the body corporate for Tall Pines community titles scheme 26765.

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

(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)).

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 (Act Schedule 5 section 6). 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 (Act Schedule 5 section 23).

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

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.

An order appointing an administrator may be the only order the adjudicator makes for an application (section 276(4)(a)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 60 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) provides that an annual general meeting of the body corporate must be called and held within 3 months of the end of each of the scheme’s financial years.

In the supporting grounds, the applicant stated that the Tall Pines community titles scheme 26765 was recorded on 15 April 1999 and the first annual general meeting was held on 9 October 1999. The applicant further stated that no further meetings have been held and there is currently no elected committee. The applicant wishes to have the scheme placed on a proper legal footing.

Five of the remaining six owners have consented to the appointment of an administrator for the purposes of calling an annual general meeting. The person nominated as administrator has consented in writing to that appointment.

In the circumstances, I am satisfied that an order should be made in terms authorised by Schedule 5 section 6 of the Act. The appointment is necessary to authorise a person to call and hold an annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.