Villa D'Este [2005] QBCCMCmr 347 (23 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0400-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8252
Name of Scheme:	Villa D’Este
Address of Scheme:	147 School Road Yeronga Qld 4104

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

Mercantile Estates Pty Ltd, the owner, or entity entitled to immediate registration as owner of lots 1 to 6 inclusive

I hereby order that - 1. Trevor Matthews of R Matthews & Sons of 678 Ipswich Road, Annerley, QLD is appointed as administrator to call, hold and chair a general meeting ("the meeting") of "Villa D’Este CTS 8252" within one (1) month of the date of this order. 2. For the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers - • To further delegate any of these powers to another person; or • To incur expenditure apart from that necessary for the calling and holding of the meeting. 3. The administrator shall hold the appointment for the period beginning from the date of this order until the close of the meeting ordered. 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 before it. 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 0400-2005

"Villa D’Este" CTS 8252

The applicant, Mercantile Estates Pty Ltd, the owner, or entity entitled to immediate registration as owner of lots 1 to 6 inclusive, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

That a time frame be set for the calling of a general meeting to be deemed the first general meeting for Villa D’Este CTS 8252.

In the grounds the applicant states:

... Unfortunately no minutes or records have been kept over the years and it is proposed to sell the lots individually. An order is now sought for a date to be set for a general meeting to be deemed as the first AGM ... Mr Trevor Matthews of Matthews Body Corporate Management has agreed to convene the meeting at no cost.

Section 276(1) 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 (section 276(2)).

Specifically, 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 Schedule 5 Adjudicator’s Orders) 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.

The administrator has the powers given to the administrator under the order (section 248(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 adjudicator 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)).

The Body Corporate and Community Management Act (Standard Module) (the Standard Module) section 60 provides that an annual general meeting (other than the first annual general meeting) must be called and held within 3 months after the end of each of the scheme’s financial years. A general meeting (which includes an annual general meeting) may be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions (see section 40(c) of the Standard Module). Moreover, the agenda for an annual general meeting must include the items set out in sections 45(2) and (3) of the Standard Module.

Specifically, I have not ordered that an election of the committee be held at the meeting, since given the number of lots in the scheme, or conversely the current number of owners, the provisions of section 11 of the Standard Module apply and an election of committee members is not required since all owners are deemed by that provision to be members of the committee of the body corporate.

I note that the applicant is not presently the registered owner of all lots in the scheme. However I have been provided with materials that evidence that the applicant is entitled to immediate registration as the owner of all lots in the scheme of which the applicant is not currently the owner.


In the supporting grounds, the applicant states that -

The BUP registered on 25^th March 1980 and there are no records of the establishment of the body corporate. The applicant wishes to establish and put the body corporate on a proper legal footing.

As the applicant is the sole owner of all of the lots, notice of the ordered meeting may be dispensed with under the provisions of section 42(4) of the Standard Module. However the matters contained in section 62(3) need to be considered and the meeting decisions minutes.

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 thereafter allow it to administer itself in accordance with the legislation.