Balmoral Gardens [2004] QBCCMCmr 327 (23 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0388-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3469
Name of Scheme:	Balmoral Gardens
Address of Scheme:	36 - 38 Wagner Road CLAYFIELD QLD 4011

TAKE NOTICE that pursuant to an application made under the abovementioned Act by William Douglas Thompson, the owner of all lots

C G YOUNGI hereby order – (1) William Douglas Thompson is appointed Administrator to call, hold and chair an annual general meeting ("the meeting") of "Balmoral Gardens" within one (1) month of the date of this order. (2) The Administrator shall hold appointment for the period beginning from 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 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. (2) Under section 42(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the "Standard Module") no notice of meeting need be given. 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. I further order that for the purposes of the Body Corporate and Community Management Act 1997 (the Act) and pursuant to section 229 of the Act, the next financial year end date of the Body Corporate for Balmoral Gardens Community Titles Scheme 12133 shall be 1/1/981 July 2004, in place of the previous financial year end date. I further order that thereafter, each successive financial year for the Body Corporate for Balmoral Gardens Community Titles Scheme 12133, shall commence on 1 July and terminate on 30 June, respectively. 2y2y1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0388-2004

"Balmoral Gardens" CTS 3469

The applicant, William Douglas Thompson, the owner of all lots, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Body Corporate requires a financial year end date to be set to be able to convene an AGM.

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)).

Section 276(1) 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 (section 276(2)).

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 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 (see Schedule 5 Adjudicator’s Orders).

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 (the "Standard Module") 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. A general meeting (which includes an annual general meeting) may be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions (see section 40(c) of the Standard Module). Moreover, the agenda for an annual general meeting must include the items set out in section 45 of the Standard Module.

The applicant owns all of the lots comprised in the scheme. In the supporting grounds to the application, he states that the body corporate has not convened an AGM for several years as the previous owner owned all lots. No body corporate records exist excepting the plan. The owner now requires that the body corporate be established on a proper legal footing in order to administer its affairs in accordance with the legislation.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold an annual general meeting. I have also made provision for future annual general meetings to be determined based on the date of the meeting ordered to be held.Rosetta G JorgensenUnit 1, 17 Oxford Street, Rockhampton Qld 4700xxxxxx2n