Sunday Zira [2005] QBCCMCmr 17 (12 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0804-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28061
Name of Scheme:	Sunday Zira
Address of Scheme:	1 / 19 Ingham Court Mooroobool Qld 4870

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

the Public Trustee of Queensland as administrator for financial matters of Peter Rowan White

I hereby declare that Desmond and Margaret Tong, the owners of lot 2 (appointees) are jointly and severally authorised to take possession of body corporate records and similar property, and are authorised to call an annual general meeting of the body corporate at any time within three months of the date of this order. I further declare that any annual general meeting called pursuant to this order will be deemed valid notwithstanding any failure to hold the meeting within 3 months of the end of the scheme’s financial year. I further declare that all body corporate records and similar property should be immediately sent to the appointees by being posted to "Mr and Mrs Des Tong, PO Box 711, Manunda Qld 4870".

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0804-2004

"Sunday Zira" CTS 28061

Application

Sunday Zira Community Titles Scheme (Sunday Zira) is a 3 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Small Schemes Module Regulation (Small Schemes Module).

The Public Trustee of Queensland as administrator for financial matters of Peter Rowan White, owner of lot 1 (applicant) has brought this application. It is submitted that the body corporate is not functioning and orders are sought to the effect that an annual general meeting be held and that the secretary be required to deliver the body corporate records to the owners of lot 2 who have consented to take the necessary steps to get the body corporate functioning according to legislative requirements.

The secretary has provided a submission to the effect that he was unaware of any dispute and that the owners should simply have called a meeting to appoint new committee members and then have requested the body corporate records be delivered to the new treasurer. He says that once a meeting is called he will provide the body corporate seal and on notification of a new treasurer he will surrender the accounts.

The owners of lot 2 have provided submissions to the effect that it was agreed at a meeting between representatives of all owners that all papers, bank accounts, body corporate seal and records be sent to them. However, they say that they have had difficulty contacting the secretary.

Decision

It is apparent that the scheme is not currently operating in accordance with the legislation. Specifically, the legislation requires annual meetings at which budgets will be adopted that contain an estimate of spending from the administrative fund for the upcoming financial year and an estimate of spending from the sinking fund over a ten year period (Small Schemes, 55). Further, annual general meetings must be held within 3 months after the end of each of the scheme’s financial years (Small Schemes, 37).

It appears that the applicant could have resolved this issue itself without making an application simply by arranging for a meeting to be called at which owners could have voted to serve a formal notice on the secretary requesting return of the body corporate records and any other property (Small Schemes 22, 112 ).

However, given the body corporate has not been functioning in accordance with the legislation it is appropriate to appoint one of the owners to receive the records and call an annual general meeting of the body corporate. It seems important that this annual general meeting be held as soon as possible without necessarily being held within three months after the formal end of financial year of the body corporate. I will therefore make an order deeming the meeting valid notwithstanding any failure to hold the meeting within 3 months after the end of the scheme’s financial year as required by the legislation.

It would also be convenient if all body corporate records were immediately provided to the appointees to assist them in preparing the accounts and/or budgets for the annual general meeting. All persons associated with the scheme who have possession of body corporate records or similar property should immediately post that material to the appointees.

Order

For these reasons, I make the order above.