Harewood [2005] QBCCMCmr 120 (2 March 2005)

Last Updated: 5 July 2005

REFERENCE: 0139-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5306
Name of Scheme:	Harewood
Address of Scheme:	11 Harewood Street ANNERLEY QLD 4103

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

Tommy Loo Shang Kwok, the owner of all lots in the scheme

I hereby order that – 1. Richard John Holmes of Barard Management Pty Ltd, PO Box 302, Toowong Q 4066 is appointed as administrator to call, hold and chair a general meeting ("the meeting") of "Harewood" 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 0139-2005

"Harewood" CTS 5306

The applicant, Tommy Loo Shang Kwok, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That Richard John Holmes of barard Management Pty Ltd be appointed to call hold and preside over a general meeting of the body corporate for Harewood community titles scheme 5306 which will be deemed to be the first annual general meeting of the body corporate.

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 applicant, who is the owner of all 6 lots comprising the scheme, states that the building units plan (now known as a building format plan) registered on 16 May 1990 and there are no records of the establishment of the body corporate. The applicant further states that he now wishes to put the body corporate on a proper legal footing.

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.