1 Epacras Street [2004] QBCCMCmr 471 (7 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0622-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9698
Name of Scheme:	1 Epacras Street
Address of Scheme:	1 Epacras Street, WINDOSR QLD 4030

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Elder Lifestyle Pty Ltd, the owner of lots 1 and 2

I hereby order that - (1) Richard Holmes of Barard Management Pty Ltd, PO Box 302 Toowong Qld 4066 is appointed as administrator to call, hold and chair an annual general meeting ("the meeting") of 1 Epacras Street 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. (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 – 1. 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. 2. The meeting must consider and determine the matters set out in section 62(3) of the Standard Module. 3. The meeting may consider any other motion. I further order that the meeting shall be deemed to be the first annual general meeting of the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0622-2004

"1 Epacras Street" CTS 9698

ORDER SOUGHT

The applicant, Elder Lifestyle Pty Ltd, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1. To order that Richard John Holmes of Barard Management Pty Ltd be appointed to hold a general meeting of the body corporate, which will be deemed to be the first annual general meeting of the body corporate.
2. To order that the requirement to give 21 days written notice to hold the general meeting be waived.

JURISDICTION

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 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)).

DETERMINATION

In the supporting grounds, the applicant, the owner of all lots comprising the scheme, states that the group titles plan (now known as a standard format plan) registered on 25 February 1987 and there are no records of the establishment of the body corporate.

The person nominated as administrator has consented in writing to the appointment.

As the applicant is the owner of all lots, no notice of meeting need be given. However the matters contained in section 62(3) of the Standard Module need to be considered and the meeting decisions minuted.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 62(4) of the Standard Module. The appointment is necessary to authorise a person to call and hold the first annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.