Newport [2005] QBCCMCmr 571 (14 October 2005)

Last Updated: 19 July 2006

REFERENCE: 0707-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1582
Name of Scheme:	Newport
Address of Scheme:	31 Digger St, CAIRNS Q 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Newport

C G YOUNGI hereby order that – (1) Meg Trimble of Trimble Real Estate Pty Ltd of 157 Buchan Street, Cairns, QLD is appointed Administrator to call, hold and chair an annual general meeting ("the meeting") of "Newport" within three (3) months of the date of this order for the purpose of - • the consideration of motions included on the agenda of the meeting; and • the election of committee members. (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 - (a) within seven (7) 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. (b) each owner shall have twenty one (21) days from the date of this order to provide to the administrator their motions (if any) for inclusion on the agenda of the meeting, and their nomination or nominations (if any) for the committee and provided the same are provided to the administrator within twenty one (21) days from the date of this order, then the administrator must include such motions and nominations on the agenda of the meeting to be convened by the administrator. (c) The administrator shall not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order. 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 nomination and election procedures for the election of committee members shall be in the manner provided for in sections 13 and 13A of the Body Corporate and Community Management (Standard Module) Regulation 1997. (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 and all other provisions relating to meetings under the Standard Module.2y2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0707-2005

"Newport" CTS 1582

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

Authority for body corporate management to convene an AGM outside the legislated period. We would prefer the AGM date authorised to be Saturday 12^th November 2005, as we now have financials audited and are ready for AGM.

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 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.

In the grounds to the application, the applicant states that:

• The failure to convene an AGM this year has been due to the fact of a misappropriation of funds, causing delays in return of records before an audit could be done, and delays in the audit process itself;
• The body corporate was not in a position to call the AGM before the end of August, and in the meantime 10 of 12 lots have changed ownership, such that a committee is no longer available;
• The AGM is proposed for Saturday 12 November to "enable interstate owners to travel to Cairns to be in attendance, so we can elect a new committee and move forward".

The applicants to this application, though stated to be the body corporate, are in fact the owners of 7 of the 12 lots in the scheme. There are four other owners of 5 lots. There is no resolution of the body corporate committee to bring the application, as currently there is no elected committee. I am satisfied that the application is made by the majority of owners, albeit a bare one. Given that a majority of owners have put their name to the application I have not sought submissions regarding the application from all owners. However, given that certain owners may not be aware of this application, and that a general meeting is to be called, I have provided in the order that a copy of this order must be provided to all owners and they given the opportunity to submit motions for inclusion on the agenda and also to nominate for the committee. These requirements will mean that the meeting cannot be held on the date sought in the application, however this does not concern me. I am more concerned to ensure that all owners are aware of the meeting to be convened, and have the opportunity to both submit motions for inclusion on the agenda and to nominate for the committee. These are important requirements and necessary to ensure the rights of all owners.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold an annual general meeting, and further, that there is no reason before me why the requested appointment of an administrator should not be made, but subject to the conditions I have imposed in the order. Rosetta G JorgensenUnit 1, 17 Oxford Street, Rockhampton Qld 4700xxxxxx2n