Pacific Keys Central [2005] QBCCMCmr 311 (8 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0300-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10021
Name of Scheme:	Pacific Keys Central
Address of Scheme:	54 Hooker Boulevard, MERMAID WATERS QLD 4218

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

Mr Len Field, the owner of lot 10.

I hereby order that Ms Janice McCarthy of Strata-Jem Pty. Ltd., 102 Queen Street Southport Qld 4215 is appointed as administrator to pay necessary body corporate expenses and to call, hold and chair an Annual General Meeting of Pacific Keys Central within four (4) months of the date of this order for the purpose of considering motions included on the agenda and the election of committee members. The administrator shall hold this appointment for the period beginning from the date of this order until close of the Annual General Meeting. I further order that 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, but may not • further delegate any of those powers to another person; or • incur any expenditure apart from that necessary for operation of the body corporate and the calling and holding of the Annual General Meeting. I further order that within 14 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 ("lot owners").

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0300-2005

"Pacific Keys Central" CTS 10021

APPLICATION
The applicant, the owner of lot 10 in the scheme, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the Body Corporate Manager be instructed to convene an Extraordinary General Meeting for the purposes of electing executive and ordinary committee members.

JURISDICTION

This application involves a request for a declaratory order and evidences a dispute within the meaning of section 227(2) of the Act.

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. 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). An administrator appointed pursuant to chapter 6 of the Act has the powers given to the administrator under the order (section 301(2)). 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)).

BACKGROUND

The applicant has advised that all executive and ordinary members of the committee resigned on 18 April 2005 and there is now no committee. All members of the body corporate Committee resigned subsequent to the Extraordinary General Meeting held on 18 April 2005, whereby the majority of members voted to extend the caretaking and letting agreements. The applicant has advised that committee members viewed the decision of the Body Corporate as a vote of no confidence in the committee.

All owners were invited to respond to the application. Submissions were received from six owners who opposed the calling of an EGM on the basis that an AGM is to be held in the near future.

One submission argued in favour of holding an EGM on the basis that a committee had to be appointed for the purposes of calling, holding and chairing the upcoming AGM in September. Attached to the submission was a petition signed by numerous owners requesting that an EGM be held at which a new committee could be elected. Motions need to be considered regarding budgets, insurance, manager’s contract, roof membrane and the enforcement of by-laws.

DETERMINATION

In a case such as this, where the committee has resigned en masse, it is my view that the only realistic solution is for an adjudicator to order that an administrator be appointed for the purposes of calling a general meeting at which a new committee can be elected. While this would often involve calling an extraordinary general meeting, I believe that in the circumstances there would be little benefit in calling an EGM such a short time before the AGM is to be held. Realistically, having regard to the notice periods in the Standard Module Regulation, an EGM could not be convened until late July or August.

I am of the view that the most expedient and cost effective solution in this case would be to appoint an administrator (i.e. the existing Body Corporate Manager) for the purpose of paying body corporate bills, preparation of the agenda for the AGM and calling the AGM at which a new committee can be elected.

The person nominated as administrator has consented to the appointment.

ORDERS
I have therefore made the following orders:

That Ms Janice McCarthy of Strata-Jem Pty. Ltd., 102 Queen Street Southport Qld 4215 is appointed as administrator to pay necessary body corporate expenses and to call, hold and chair an Annual General Meeting of Pacific Keys Central within four (4) months of the date of this order for the purpose of considering motions included on the agenda and the election of committee members. The administrator shall hold this appointment for the period beginning from the date of this order until close of the Annual General Meeting.

That 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, but may not

• further delegate any of those powers to another person; or
• incur any expenditure apart from that necessary for operation of the body corporate and the calling and holding of the Annual General Meeting.

That the administrator shall hold this appointment for the period beginning from the date of this order until close of the annual general meeting.

Although the applicant has sought an interim order, this order shall have effect as a final order.