Atlantis East [2004] QBCCMCmr 68 (3 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0059-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9748
Name of Scheme:	Atlantis East
Address of Scheme:	2 Admiralty Drive , PARADISE WATERS Q 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Atlantis East

I hereby order that the application by the body corporate for an order to appoint Body Corporate Services as an administrator until the election of a committee at the AGM, is dismissed. I further order that the two remaining committee members shall collectively give instructions to the non-voting body corporate secretary in relation to the convening of the AGM. I further order that in the event that the committee motions for inclusion on the agenda of the AGM were not determined and approved by the committee when a quorum existed, then the two remaining committee members are authorised to approve all necessary committee motions for inclusion on the agenda of the AGM. I further order the two remaining committee members are authorised to pay all body corporate expenses properly incurred and falling due for payment prior to the date of the AGM. I further order that one of the two remaining committee members (at their election) shall chair the AGM, and if both are unwilling or unavailable, then the chairperson for the AGM shall be determined by a vote of owners present at the meeting by way of a show of hands at the start of the AGM. I further order that the two remaining committee members shall be authorised to do all remaining functions necessary and incident to the convening and holding of the AGM.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0059-2004

"Atlantis East" CTS 9748

The applicant, the body corporate for Atlantis East has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

To have an order ... to appoint Body Corporate Services as an administrator until the election of a committee at the 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)).

The scheme is registered under a building unit plan of subdivision and contains some 181 lots.

In its grounds the applicant states that –

At the budget committee meeting held on 30^th January 2004 three committee members resigned. The committee consisted of a chairperson, non-voting secretary and treasurer and four ordinary committee members. The chairperson and two committee members resigned leaving only 2 voting committee members and therefore no resolutions can be passed and no vacancies can be filled by the current committee.

The AGM has been set for 4^th March 2004.

Section 25(c) of the Standard Module provides that –

25C Committee must appoint new member or call general meeting of body corporate
(1) Within 1 month after the position of the member of the committee becomes vacant, the committee must--
(a) if the number of its members has not fallen below the number required for a quorum--

(i) appoint a person who is eligible to be a member of the committee to fill the vacancy; or
(ii) call a general meeting of the body corporate to choose a person to fill the vacancy; or

(b) if the number of its members has fallen below the number required for a quorum--call a general meeting of the body corporate to choose a person to fill the vacancy.

(2) However, subsection (1) does not apply to a position that becomes vacant because the body corporate removes the member from office by ordinary resolution if the body corporate fills the vacancy under section 25B.

With two of six voting members of the committee remaining, there is no quorum. Subsection (1)(b) applies and the body corporate must call a general meeting. I note that the AGM is scheduled for 4 March 2004, at which a new committee will be elected.

I do not intend to make the order as sought as I do not consider it to be necessary. To appoint an administrator to a body corporate is a significant action, and I would not be prepared to take such action in the absence of having invited submissions from all owners and having considered their views as to the proposed appointment. Given that the AGM is to be held on 4 March 2004, and that there remains two serving committee members, then I see no necessity for the order as proposed. Rather I intend to empower the remaining committee members to undertake certain functions. I consider this is preferable to the appointment of an administrator.

In the intervening period, I see no issue with the two remaining committee members undertaking necessary routine functions. Clearly there is not a quorum (see section 32) so no meetings can be held or committee resolutions carried. However, I consider that the two remaining committee members might at least collectively give instructions to the non voting body corporate secretary in relation to the convening of the AGM. As for the committee motions for inclusion on the agenda of the AGM, it is unclear from the material whether these were determined and approved by the committee prior to the three resignations. In the event that they were not, I intend to empower the two remaining committee members to approve all necessary committee motions for inclusion on the agenda of the AGM. I further intend to empower the two remaining committee members to pay all body corporate expenses properly incurred and falling due for payment prior to the date of the AGM (eg. electricity charges). As for chairing the AGM, I intend to authorise one of the two remaining committee members (at their election) to chair the AGM, and if both refuse, to order that a chairperson for the AGM shall be determined by a vote of owners present at the meeting by way of a show of hands.