Mazoe Heights [2004] QBCCMCmr 63 (30 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0046-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21334
Name of Scheme:	Mazoe Heights
Address of Scheme:	Arkana Street MUDGEERABA QLD 4213

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

Frank Batholomew Irons & Jean Esme Irons, the co-owners of lots 1 and 2

I hereby order that – 1. Frank Bartholomew Irons of 18 Arkana Street, Mudgeeraba Q 4213 is appointed as administrator to call, hold and chair a general meeting ("the meeting") of "Mazoe Heights" within three (3) months of the date of this order. 2. The administrator shall hold the appointment for the period beginning on the date of this order until 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 0046-2004

"Mazoe Heights" CTS 21334

The applicants have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

To form and establish a body corporate which has not had a meeting for the past 14 years.

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)).

In the supporting grounds, the applicants, who are the co-owners of both lots comprising the scheme, state that they purchased lot 2 in 1988, and then in 1991 they purchased lot 1. They further state that no meetings were held whilst lot 1 was in different ownership. Subsequently, as they owned both lots in the scheme, they also did not hold meetings, but they now wish to place the body corporate on a proper legal footing. They further state that they held their first meeting on 14 January 2004.

As the applicants are the co-owners of all lots, no notice of meeting need be given. However the matters contained in section 62(3) of the Standard Module must be considered and the meeting decisions minuted. Accordingly, although the applicants have held a meeting on 14 January 2004, that meeting has no official standing as a first annual general meeting unless first ordered by an adjudicator. Furthermore, the meeting which was held would not appear to have considered all of the matters required to be considered under section 62(3), which provides as follows:

62 First annual general meeting

(1) ...

(2) ...

(3) The agenda for the meeting must include the following items--

(a) adopting or reviewing budgets, and fixing of the contributions to

be levied against the owners of lots, for the body corporate’s first

financial year;

(b) reviewing the policies of insurance taken out for the body

corporate and, if appropriate, changing the insurance;

(c) choosing the members of the committee;

(d) providing for the custody and use of the body corporate’s seal;

(e) deciding what issues are reserved for decision by ordinary

resolution;26

(f) deciding whether the by-laws should be amended or repealed;

(g) appointing an auditor to audit the accounts of the body corporate,

or resolving by special resolution not to appoint an auditor;

(h) if the meeting is called on the order of an adjudicator under the

dispute resolution provisions--deciding issues the adjudicator

orders to be placed on the agenda for the meeting.

It should be noted, in relation to section 62(3)(c) concerning committee, that as there are only two lots in the scheme, and as both lots are in identical ownership, the provisions of section 11(3) of the Standard Module apply, and the committee is a committee of 1 consisting of the individual who is the owner, or the nominee of the owner, of the lots, and the individual holds all the executive positions (chairperson, secretary and treasurer) on the committee.
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.