Westview [2005] QBCCMCmr 295 (2 June 2005)

Last Updated: 2 August 2005

EFERENCE: 0210-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10573
Name of Scheme:	Westview
Address of Scheme:	134 Station Road INDOOROOPILLY QLD 4068

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

the Body Corporate for Westview

I hereby declare that the general meeting held on 30 March 2005 shall be deemed to be the 2005 annual general meeting for the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0210-2005

"Westview" CTS 10573

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

That the financial year end of the body corporate for Westview CTS 10573 for 2004 be declared to be extended from 30 November 2004 to 31 January 2005.

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 a subdivision of 12 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the standard module.

In its grounds, the applicant body corporate has stated:

The financial year of ... Westview is 1 December to 30 November each year.

Therefore the window period for holding the AGM each year is 1 December to 28 February each year.

The AGM should be held no later than 28 February 2005. However because of work delays, the 21 days notice to owners cannot now be given if the meeting is to be held before 28 February 2005.

By extending the closing date of the previous financial year, the body corporate will be able to hold its meeting with legality.

The order applied for is that, for one year only, the financial year end date of this body corporate be extended from 30 November 2004 to 31 January 2005, a period of 2 months. This order is requested to allow the body corporate to hold its AGM within 3 months of the end of its financial year (that is: by 28 February in the case of this body corporate, or in the case of the extended date, by 30 April 2005). Section 60 of the standard module provides that an AGM must be called and held within 3 months of a scheme’s financial year.

Section 283 of the Act specifically provides –

283. Change of body corporate’s financial year.
With the consent of the body corporate, the order of the adjudicator may include a change of the body corporate’s financial year and of the dates when later financial years begin.

Clearly this section contemplates a permanent change in a body corporate’s financial year. This is distinct from a one off change, and subsequent reversion to the original financial year end date contemplated in the case of this body corporate. Whilst adjudicators regularly consider requests for permanent changes to the financial year end date of a scheme, usually supported by a majority resolution of that body corporate in general meeting, adjudicators are not in the practice of providing one of changes to a scheme’s financial year end date. It was due to the unusual nature of this application, coupled with the fact that at this time, several applications of this nature have been received all associated with the same body corporate manager, that it was considered necessary to further investigate the circumstances pertaining to such applications, and in particular to investigate the respective committee’s level of knowledge regarding the circumstances of such application, or even why the AGM had been held later than usual.

In response to those further investigations, I have received two responses. One from the body corporate manager stating:

The main reason that the AGM was not held was because the December / January period each year is a difficult time to arrange and to coordinate body corporate meetings. We experience each year that many lot owners are away on holidays or do not want to think about body corporate issues and so it is very difficult to get documents approved.

The latter response received from the chairperson and secretary of this body corporate contradicts the manager’s response completely:

It has long been the committee’s belief that the delay in conducting the AGM was due entirely to the failure of the appointed managers. However their response to you on 11 May 05 infers that the committee was not interested in organising or approving the papers necessary to conduct the AGM. That is clearly incorrect as all the committee members, without exception, were available and in fact were pushing to have the matter dealt more promptly than Barard was doing. ...

The committee is firmly of the opinion that it has taken every action necessary to promote its obligation for prompt management of the Westview Body Corporate, and the actions of the contracted body corporate management organisation are the sole reason for failure to comply with these obligations. This committee does not accept the reasons offered by Barard Management Pty Ltd in its letter to the commissioner. ...

It is not relevant for me to make any observations on the actions of the relevant manager. This is an aspect for the body corporate in general meeting to consider. The purpose of the further investigations undertaken was to ascertain the level of committee knowledge regarding the application, and the necessary for such application. This office is not in the habit of rubber stamping orders requested in applications, even if they are seemingly of a minor or inconsequential nature.

I am informed by all parties that the AGM for the scheme was in fact held on 30 March 2005. This is one calendar month outside the time period stated in section 60 of the standard module. Rather than order in terms as sought in the application that the scheme’s financial year end date be extended on a one off basis (which I do not consider appropriate given the requirements of section 283 of the Act) I intend to deem the AGM held on 30 March 2005 to be the AGM for the year 2005. The effect of this order is to provide the body corporate with some certainty as to the status of that meeting in terms of the specific requirement of section 60 of the Standard Module.

However, in making this order in these terms, I am not given any imprimatur to or confirming the validity of any of the procedures taken relating to either the calling of the meeting in question, or the conduct of such meeting. That is, owners are still at liberty to challenge the validity of such meeting, or any aspect associated with it, should they so choose. In particular, I have not considered the validity of the process by which the meeting was called or held, and I make no finding in that regard. I have also not been requested to consider nor have I considered the validity of the voting process, or the validity of the motions considered at the meeting, and I make no findings in respect of those issues. The order made simply deems the meeting held to be the AGM for this year just completed, and no more.