Raquel Court [2004] QBCCMCmr 3 (6 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0828-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4428
Name of Scheme:	Raquel Court
Address of Scheme:	Cnr Kenworth Place & Deakin Street BRENDALE QLD 4500

TAKE NOTICE that pursuant to an application made under the abovementioned Act by: John Stephen FINNEMORE, as a co-owner of Lots 1 and 2; Dawn Mary WALTERS, as a co-owner of Lots 3 and 4; Bernd DUMKE, as a co-owner of Lot 6,

I hereby order that - 1. Ian Kenneth D’ARCY of Capitol Body Corporate Administration, of 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 for the purpose of – • the consideration of motions included on the agenda of the meeting; and • the election of committee members. 2. The Administrator shall hold the appointment for the period beginning from the date of this order until the close of the meeting ordered. I further order that within fourteen (14) 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, or if there is no roll then to each person whose name should appear on the roll, at an address that is most likely to find them. 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. (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) 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 Standard Module. (4) The Administrator must give at least two (2) weeks written notice to owners inviting them to submit motions for inclusion on the agenda of the meeting. (5) The Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order. (6) 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. (7) The meeting may also consider any other motion properly 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 0828-2003

"Raquel Court" CTS 4428

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

That Ian Kenneth D’Darcy of Capitol Body Corporate Administration be appointed to convene an Annual General Meeting of the Body Corporate and that such meeting be deemed to be the first Annual General Meeting.

The application included a S and D Ogle as the owners of Lot 5 whereas the title records show this lot to be owned by the co-owners of Lot 6 (Dumke and Surm). This may be the result of some transaction in progress, but in the circumstances I have excluded them as co-applicants and rely on Dumke’s consent in respect of Lot 6 as sufficient.


JURISDICTION:
This application concerns a failure by the original owner to properly call and conduct the statutory First Annual General Meeting, and the subsequent failure of the body corporate to establish proper body corporate records and hold annual general meetings. Jurisdiction is specifically provided under section 62(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 Body Corporate and Community Management Act 1997 ("the Standard Module") for the holding of a meeting deemed to be the First Annual General Meeting; see also the general jurisdiction provisions under the dispute resolution provisions of the Act (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:
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 (see Item 6 of Schedule 5 to the Act) or 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.

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).

Section 62 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the "Standard Module") provides that the original owner must call and hold the first annual general meeting of the body corporate within one month after the first of the following to happen –

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.

Moreover the agenda for the meeting must include the items set out in section 62(3) of the Standard Module. If the original owner does not call and hold the first annual general meeting as required by the section, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first annual general meeting within a stated time (section 62(4)).


APPLICATION:
The applicants submit that Beavis & Bartels (Gold Coast) Pty Ltd was the sole owner of all the lots from the outrset and there are no existing body corporate records to show that the statutory first annual general meeting was held or that any meetings have been held at all. All owners have consented to the appointment of a person ( D’Arcy) for the purposes of holding a meeting to establish the body corporate on a proper legal footing so that it may administer itself in accordance with legislative requirements.


DETERMINATION:
"Raquel Court" was registered as a building units plan (now termed a building format plan) in August 1991 and comprises 6 lots.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 62(4) of the Standard Module regulations. Ian D’Arcy has consented to the appointment and I have ordered that a meeting be held which shall be deemed to be the First Annual General Meeting. The meeting will allow the body corporate to properly establish itself to administer its affairs in accordance with the legislation.

I have also made provision for future annual general meetings to be determined relative to the date of the meeting – this will also enable a full financial year budget to be considered at the meeting.