The Shops - Loganholme [2004] QBCCMCmr 77 (9 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0579-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16361
Name of Scheme:	The Shops - Loganholme
Address of Scheme:	4059 Pacific Highway, LOGANHOLME QLD 4129

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Gorring Pty Ltd, the owner of lots 1 and 2

I hereby order that B & D Body Corporate Management (the appointee) of Cleveland, QLD is appointed to call, hold and chair a general meeting (the meeting) of The Shops Loganholme within two6 (2) months of the date of this order. I further order that - (1) at least 7seven (7) days notice of the meeting must be given to lot owners; (2) notice of the meeting is to be given in accordance with section 42 of the standard module; (3) the agenda of the meeting must include the items set out in section 62(3) of the standard module, and the meeting may determine any other motion validly before it; (4) except as provided for in this order, the meeting and all related matters must be conducted in accordance with the standard module. 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 0579-2003

"The Shops - Loganholme" CTS 16361

The applicant, Gorring Pty Ltd, the owner of lots 1 and 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Body Corporate to hold first 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)).

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. 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.

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 adjudicator may be the only order the adjudicator makes for an application and may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The Body Corporate and Community Management Act (Standard Module) (the Standard Module) section 62 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)).
n
In the supporting grounds, the applicantn nstates that the plan was registered in 1996 but that no meetings have ever been held. No budgets for the administrative and sinking funds have ever been established, and the body corporate has never held insurance. I note there are 4 lots in the scheme. The applicant is the owner of 2 of those lots. The owner of lot 4 has consented to the application and the appointment sought, as has Leslie and Marion Hawker, the owners of lot 3, in a submission. The appointee has consented to the appointment as administrator.

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.