Raby Bay Harbour [2005] QBCCMCmr 508 (12 September 2005)

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

C G YOUNGI hereby order that –

(1) Stewart Silver King & Burns, of Level 2, The Precinct, 12 Browning Street West End is appointed Administrator to call, hold and chair an annual general meeting ("the meeting") of "Raby Bay Harbour" within three (3) months of the date of this order for the purpose of considering motions included on the agenda of the meeting.
(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 within fourteen (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.
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, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

(2) The Administrator must give at least two (2) weeks written notice inviting owners to submit motions for inclusion on the agenda of the meeting.
(3) The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act and Standard Module, in particular Part 4 headed General Meetings.
(4) The Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.2y2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0399-2005

"Raby Bay Harbour" CTS 30942

The applicant, Allan Jones, a member of the committee of Raby Bay Harbour, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

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

(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 make an order appointing an administrator, and authorising the administrator to perform obligations of the body corporate, its committee, or a member of the committee under the Act or community management statement.

Section 301 of the Act deals specifically with the appointment of an administrator, quote:

301 Appointment of administrator
(1) This section applies if an order is made under this chapter appointing an administrator.
(2) The administrator has the powers given to the administrator under the order.
(3) Without limiting subsection (2), the power may include power to levy a special contribution against the owners of lots included in a community titles scheme to meet the cost of complying with obligations to which the order relates and the costs of the administration.
(4) The order may--
(a) withdraw all or particular stated powers from the body corporate, a body corporate manager to whom a power has been given under section 119 or 120, or stated officers of the body corporate
until the administrator has taken the necessary action to secure compliance with the obligations; and
(b) require officers of the body corporate or a body corporate manager mentioned in paragraph (a) to take stated action to help perform the work the administrator is required to perform; and
(c) fix the administrator’s remuneration.
(5) The administrator’s remuneration is to be paid out of the funds of the body corporate.
(6) This section does not apply to the enforcement of a monetary obligation of the body corporate arising under another Act unless it is an enforceable money order.

Raby Bay Harbour (RBH) is the principal body corporate in a layered arrangement. The scheme has 4 lots comprising a still to be developed lot and three subsidiary bodies corporate. These are:

The applicant advises that the previous body corporate manager terminated its management agreement with RBH and the three subsidiary schemes and since this time "the committee’s of Raby Bay Harbour, Raby Bay Harbour Villas and Raby Bay Harbour Apartments bodies corporate have obtained and considered quotations from numerous body corporate managers and have these quotations to be submitted to an AGM. Our preferred management company is Stewart, Silver, King and Burns ...".

Other issues involving the principal and subsidiary schemes have recently been brought to this office but I understand that for the most part these applications have now been resolved.

I have previously indicated to the applicant in a teleconference in June that I was only prepared to deal with this application as pertaining to one scheme, namely, the principal scheme, RBH. As each scheme is an individual body corporate, I indicated that any dispute involving the individual subsidiary schemes would need to be the subject of separate application. I am only prepared to consider the current application in so far as it pertains to the principal scheme, Raby Bay Harbour.

The difficulty in dealing with this application has been in ascertaining the views of owners. Clearly, the several schemes in this layered arrangement are in disarray, with different views on the how this might and should be remedied. It has been difficult to obtain the views of "owners" to the proposals made in the application. This is so since rather than being individual owners, the membership of the principal scheme is three subsidiary schemes, each with different individual owners and different focuses. In this regard, I acknowledge that I have not received submissions from all owners.

Of those owners which have responded, the tone of submissions is supportive of the application. Moreover, I note that no submission made seeks to challenge the right of the applicant to bring this application in his capacity as a committee member of the principal scheme. I am assisted in my investigation by a submission from the lawyer for Raby Bay Harbour Commercial Centre, a subsidiary scheme of some 22 lots. The lawyer proposes the appointment of a different body corporate manager, who he alleges has the support of certain committee members, although no evidence of this is provided, and these people would have been able to make their own submission.

Importantly though, the submission concludes:

In the circumstances, I am satisfied that the order sought should be made. I consider that it is appropriate to appoint the applicant’s nominee for administrator in preference to that submitted by the lawyer for the Commercial Centre.

Number of Scheme:	30942
Name of Scheme:	Raby Bay Harbour
Address of Scheme:	152 / 166 Shore Street West CLEVELAND QLD 4163

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Raby Bay Harbour [2005] QBCCMCmr 508 (12 September 2005)