Blujene Place [2005] QBCCMCmr 28 (18 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0001-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23109
Name of Scheme:	Blujene Place
Address of Scheme:	8 Kennedy Street MACKAY QLD 4740

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Deborah June CRITCHLEY and Phillip Garfield BOWDEN, as the co-owners of L4,

I hereby order that - 1. Erin Louise SELLENTIN, c/- Macrossan & Amiet Solicitors, 55 Gordon Street, Mackay Qld 4740 is appointed Administrator to call, hold and chair a general meeting ("the meeting") of "Blujene Place" within three (3) months of the date of this order for the purpose of – • the consideration of motions included on the agenda of the meeting; and • the election of committee members. 2. The Administrator shall hold the appointment for the period beginning from the date of this order until the close of the meeting ordered. I further order that within seven (7) days of the date of this order the Administrator must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme, or if there is no roll then to each person whose name should appear on the roll, at an address that is most likely to find them. I further order that – (1) For the purpose of calling, holding and chairing the meeting, the Administrator shall have all the powers of the chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers - • to further delegate any of those powers to another person; or • to incur any expenditure apart from that necessary for the calling and holding of the meeting. (2) The nomination and election procedures for the election of committee members shall be in the same manner as provided for in sections 14 and 15 of the Body Corporate and Community Management (Standard Module) Regulation 1997. (3) The Administrator must give at least two (2) weeks written notice to owners inviting them to submit motions for inclusion on the agenda of the meeting. (4) The Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order. (5) The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 42 and 45 of the Standard Module, and all other provisions relating to meetings under Part 4 of the Standard Module. I further order that for the purposes of determining the future financial year of the body corporate, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0001-2005

"Blujene Place" CTS 23109

The applicants, Deborah Critchley and Phillip Bowden of Lot 4, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"An application to appoint Erin Louise Sellentin as administrator for the purposes of:

(a)	calling an Annual General Meeting to appoint a committee, and
(b)	create new Body Corporate Records, and
(c)	determining the commencement of the Body Corporate year.."

JURISDICTION:
This is a dispute between co-owners (the applicants Critchley and Bowden) and the body corporate (the respondent) concerning a failure by the body corporate to call meetings, keep records and conduct its affairs in accordance with the legislation. It is therefore a matter which comes within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and may be determined by a departmental adjudicator.

General powers of an Adjudicator in making an order:
Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement. An order may require a person to act, or prohibit a person from acting, in a way stated in the order (see section 276(2)).

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 (see Item 6 of Schedule 5 to the Act) or 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.

An order appointing an administrator may be the only order the adjudicator makes for an application (see section 276(4) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (see section 284 of the Act).


APPLICATION AND SUBMISSIONS:
"Blujene Place" was established as a group titles plan (now termed a standard format plan) on 15 August 1995, and comprises four lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

The applicant has submitted that the records of the body corporate have been lost, misplaced or destroyed. It is unknown if the statutory first annual general meeting was held or not, though general meetings have not been held for many years.

The other owners, Leone Rhiannon BRADFIELD of Lot 1, Desmond John and Barbara MENZIES of Lot 2, and Warren John McGRAW of Lot 3, have all given their written consent to the appointment for the stated purposes.

The applicant is seeking appointment of an Administrator to hold a meeting for the purposes of choosing a committee, establishing the required records and establishing the body corporate as an operating entity. The order provides that the election of a committee be conducted in accordance with the relaxed provisions of sections 14 and 15 of the Standard Module regulation, allowing for nomination and election from the floor of the meeting.

The meeting will be held as an annual general meeting, modified according to the requirements set out in the order though still preserving the rights of the owners of the four lots. As the scheme was established under the previous legislation in 1995 and the first AGM date is unknown (if any), I have made provision for setting of the body corporate financial year relative to the month in which the ordered meeting is held. This will also allow a full year’s budget (eg, insurance, maintenance, security lighting power, sinking fund, etc) to be determined at the meeting rather than in accordance with the financial year determined under the legislation.


DETERMINATION:
I am satisfied that an order should be made for the appointment of a person to call and conduct a meeting in order to put the body corporate onto a proper legal footing so that it may administer its affairs in accordance with the legislation.