Yaluma Sands [2004] QBCCMCmr 41 (21 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0815-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10541
Name of Scheme:	Yaluma Sands
Address of Scheme:	6 Allambie Court BUDDINA QLD 4575

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Trevor Colin SAVA, as the owner of Lot 2,

I hereby order that - 1. Trevor Colin SAVA of Unit 2 "Yaluma Sands", 6 Allambie Court, Buddina Qld 4575 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 seven (7) 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 seven (7) 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 ten (10) days 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 0815-2003

"Yaluma Sands" CTS 10541

The applicant, Trevor Sava of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"To nominate Trevor Sava/Natalie Brumniach to convene a first annual general meeting."


JURISDICTION:
This is a dispute between an owner (the applicant Sava) 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.

The body corporate has not been functioning as a body corporate for the last 20 years. The new owners would like to resurrect it back to its legal footing. It appears the original body corporate records have been lost, misplaced or destroyed. It appears uncertain whether or not the body corporate had its First Annual General Meeting.

The only other owner, Natalie Brumniach of Lot 1, has given her written consent to the appointment of a person to convene a meeting for the purpose of re-establishing the body corporate as a functioning body, including the setting up of proper records. I note that that Brumniach has been included in the order sought as a nominated Administrator. I think this may have been a simple procedural error on the part of the applicant and Bromniach as it is only necessary to appoint one person, and only Sava has given separate written consent to the appointment. The appointment will not make any difference to the rights of Bromniach as an owner, or her participation in the ordered meeting.


DETERMINATION:
"Yaluma Sands" was registered as a building unit plan (now termed a building format plan) in 1982 and comprises two lots.

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 agreement cannot be reached, the positions 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. Although the applicant has asked that the meeting be deemed to be the statutory first annual general meeting, there is no evidence that this meeting was not held and therefore I have ordered the meeting be held as an ordinary annual general meeting; this is a matter of form, and makes no difference to the establishment, or re-establishment, of the body corporate.

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.