Shelley Lodge [2005] QBCCMCmr 429 (5 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0553-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13340
Name of Scheme:	Shelley Lodge
Address of Scheme:	Queensland

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

Danimel Pty Ltd, the owner of all lots

C G YOUNGI hereby order – (1) Steve Mackay is appointed Administrator to call, hold and chair a general meeting ("the meeting") of "Shelley Lodge" within one (1) month of the date of this order so that a committee of the body corporate might be elected. (2) The Administrator shall hold appointment for the period beginning from the date of this order until the close of the meeting ordered to be held. 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, 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, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation. (1) 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.2y2y1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0551-2005

"Shelley Lodge" CTS 13340

The applicant, Danimel Pty Ltd the owner of all lots in the scheme, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

A declaration is sought by the owner of all lots within the scheme to authorise Steve Mackay to call an EGM of the body corporate for the purposes of electing a committee for the scheme.

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.

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)). 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 or to change the date of an annual general meeting 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 (see Schedule 5 Adjudicator’s Orders).

The administrator has the powers given to the administrator under the order (section 301(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 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)).

Section 60 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the "Standard Module") 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 section 45 of the Standard Module.

The applicant owns all of the lots comprised in the scheme. In the supporting grounds, the applicant states that it has acquired all lots in the scheme with the intention of redeveloping the site. The previous owner did not maintain an active body corporate. The applicant is now taking steps to comply with the requirements of the Act in relation to the election of a committee. Once a committee is election, a further general meeting of the scheme will be convened in order to consider a motion to terminate the scheme. I am satisfied that the same is in order, and that it is appropriate to make an order in the terms sought.