Barellan Lodge [2004] QBCCMCmr 318 (21 June 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Dianne Lee SMITH, as a co-owner of Lot 1, and Joanne Lesley MULHOLLAND, owner of Lot 2,

I hereby order that -

1. BUGT Small Schemes Body Corporate Management of 105 Maud Street, Maroochydore Qld 4558 (PO Box 5273 Maroochydore Business Centre Qld 4558) 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
• deciding committee executive member positions.

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 –

1. 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; and
2. invite owners to submit motions for inclusion on the agenda of the meeting, giving not less than fourteen (14) days in which to submit them to the Administrator.

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) Executive members of the committee shall be chosen in accordance with section 11(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997.

(3) The Administrator must not give the notice of meeting to owners earlier than three (3) weeks from the date of this order.

(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.

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 0376-2004

"Barellan Lodge" CTS 9531

The applicants, Dianne Smith and Joanne Mulholland of Lots 1 and 2 respectively, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

JURISDICTION:
This is a dispute between an owner (the applicants) and the body corporate (the respondent), concerning a failure by the body corporate to call meetings, keep records and conduct its affairs in accordance with the legislation. This is a matter which comes within 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:
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) of the Act).

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).

APPLICATION:
The brief facts provided by the applicants are as follows.

From the available body corporate records, the First Annual General Meeting was held on 5 July 1983. There are some minutes of meetings between that time and 26 July 2001, but there is no evidence that any meeting has been held since then.

Both owners have consented to the appointment of BUGTA Small Schemes to convene a meeting for the purpose of re-establishing the body corporate as a functioning body, including the setting up of proper records.

DETERMINATION:
"Barellan Lodge" was registered as a building unit plan (now termed a building format plan) on 2 June 1983 and comprises two lots. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997.

As there are only two owners, under section 11(4) of the Standard Module the positions of chairperson, secretary and treasurer of the body corporate committee can be merely decided upon between the owners (ie no formal nominations or election is necessary), or if no agreement can be reached, they are held co-jointly.

In the circumstances, I am satisfied that an order should be made for the appointment of a person to convene a meeting to establish and enable the body corporate to administer itself in accordance with the legislation.

As the scheme was registered under the previous legislation, I have also 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.

Number of Scheme:	9531
Name of Scheme:	Barellan Lodge
Address of Scheme:	19 Barellan Avenue BUDDINA QLD 4575

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Barellan Lodge [2004] QBCCMCmr 318 (21 June 2004)