Ashmore Shopping Plaza [2005] QBCCMCmr 75 (10 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0829-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12065
Name of Scheme:	Ashmore Shopping Plaza
Address of Scheme:	Cotlew Street ASHMORE QLD 4214

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

• Joseph Green, the co-owner of lots 21 and 22, and duly authorised representative of Bruetta Pty Ltd, the owner of lots 6, 7, 19 and 20;
• Sandra Kuppe and Gary Kuppe, the representatives of Cavendish Pty Ltd, the owner of lots 4 & 18;
• Robert Lovitt, the representative of Life & Business Pty Ltd, the owner of lot 15;
• John Woulfe and Judith woulfe, the co-owners of lot 16;
• Grahame Kemp and Marilyn Kemp, the co-owners of lot 17

C G YOUNGI hereby order that – (1) Michael Silver of Stewart Silver King & Burns, of 116-116 Bundall Road, Bundall QLD 4217 is appointed Administrator to call, hold and chair an annual general meeting ("the meeting") of "Ashmore Shopping Plaza" 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 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 nomination and election procedures for the election of committee members shall be in the manner provided for in sections 12 and 13 of the Body Corporate and Community Management (Commercial Module) Regulation 1997. (3) The Administrator must give at least two (2) weeks written notice inviting owners to submit motions for inclusion on the agenda of the meeting. (4) The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act and Commercial Module, in particular Part 4 headed General Meetings (Ss. 27 - 45) and all other provisions relating to meetings under the Commercial Module. (5) The Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order. (6) The Administrator shall be further authorised to: • Strike contributions on an interim basis under section 77(3) of the Commercial Module; and • Prior to the meeting, to obtain both a sinking fund analysis and insurance valuation report, in order to compile necessary meeting documentation. 2y2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0829-2004

"Ashmore Shopping Plaza" CTS 12065

The applicants:

• Joseph Green, the co-owner of lots 21 and 22, and duly authorised representative of Bruetta Pty Ltd, the owner of lots 6, 7, 19 and 20;
• Sandra Kuppe and Gary Kuppe, the representatives of Cavendish Pty Ltd, the owner of lots 4 & 18;
• Robert Lovitt, the representative of Life & Business Pty Ltd, the owner of lot 15;
• John Woulfe and Judith woulfe, the co-owners of lot 16;
• Grahame Kemp and Marilyn Kemp, the co-owners of lot 17

have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

... that Michael Silver of Stewart Silver King and Burns be appointed as the administrator of the body corporate for the purpose of conducting all business required for the calling of and holding of a meeting in place of the proposed AGM scheduled for Tuesday 30 November 2004 at 4.00 pm and subsequently abandoned because of the invalidity of the original meeting notice. Further, that Michael Silver be authorised as administrator to call for nominations and motions for the proposed AGM and that Michael Silver be authorised to strike levies on an interim basis on behalf of the body corporate to ensure the body corporate has sufficient funds to meet its ongoing commitments and that Michael Silver be authorised to obtain a sinking fund analysis and insurance valuation report.

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 the applicants state that the AGM scheduled for November 2004 did not proceed on the basis that the meeting notice contained errors, and owners voted not to hold the meeting. Further that:

The period for the holding of an AGM has now expired. The owners wish to call an AGM which will satisfy the obligations under (the Act). ...

The applicants to this application are the owners of 11 of the 18 lots in the scheme. I am satisfied that the application is made by the majority of owners. Further, this office required that submissions in respect of the application be sought from all owners in the scheme. No submission was received from any owner in opposition to the application or the orders which it seeks. 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. Rosetta G JorgensenUnit 1, 17 Oxford Street, Rockhampton Qld 4700xxxxxx2n