Freestyle Apartments [2005] QBCCMCmr 76 (10 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0823-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28675
Name of Scheme:	Freestyle Apartments
Address of Scheme:	47 Davidson Street PORT DOUGLAS QLD 4871

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jason Moore, the co-owner of Lot 1

I hereby order that: 1. Stewart Silver King and Burns (Gold Coast) Pty Ltd, 116-118 Bundall Road Bundall, is appointed as Administrator to call, hold and chair a general meeting (the meeting) of the "Freestyle Apartments" Body Corporate in accordance with this order and within 3 months of the date of this order. 2. The Administrator shall hold the appointment for the period beginning on the date of this order, until the close of the meeting ordered to be held. I further order that for the purposes of the Body Corporate and Community Management Act 1997 (Act), the meeting shall be deemed to be an annual general meeting of the Body Corporate. I further order that for the purposes of calling 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: 1. To further delegate any of those powers to another person; and 2. To incur any expenditure apart from that reasonably necessary for the calling and holding of the meeting, and apart from expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation. I further order that within 14 days of the date of this order, the Administrator shall serve a notice on each lot owner inviting the lot owner to: 1. Nominate an eligible individual for election to the committee in accordance with section 14 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module); and 2. Submit motions for inclusion on the agenda of the meeting. I further order that the Administrator must allow at least 14 days for each lot owner to submit nominations and motions, and that after the time allowed has expired: 1. The Administrator shall prepare an agenda for the meeting, including but not necessarily limited to, the matters set out in section 43 of the Accommodation Module. 2. The Administrator shall issue a notice of the meeting in accordance with section 40 of the Accommodation Module. 3. Except as provided in this order, the meeting must be called and held in accordance with the Act and the Accommodation Module. I further order that the Administrator’s fees for this appointment payable by the body corporate will be: 1. $500 plus GST for calling, holding and chairing the meeting; and 2. $650 plus GST for travel costs associated with the appointment as Administrator.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0823-2004

"Freestyle Apartments" CTS 28675

APPLICATION

This application is by Jason Moore, the co-owner of Lot 1 (applicant) seeking an order that Stewart Silver King and Burns (Gold Coast) Pty Ltd (SSKB) be appointed to call an annual general meeting of the body corporate.

The applicant’s main submissions were to the effect that:

• The books and records of the body corporate have not been maintained since 30 September 2003.
• The body corporate has not, for the last 2 years, sought nominations for election of the committee.
• The annual general meeting is out of time.

By letter dated 5 January 2005, Marie Coates of SSKB agreed to the applicant’s nomination to be appointed as an administrator.

JURISDICTION

"Freestyle Apartments" Community Titles Scheme 28675 is a 32 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to SSKB for distribution to all owners (excluding the applicant) and the committee. By letter dated 24 January 2005, SSKB informed this office that the notice inviting submissions was forwarded to the required parties on 21 January 2005. No submissions about the application were received.

DETERMINATION

The applicant is concerned that the annual general meeting (AGM) is out of time and that, for the last two years, nominations for committee election have not been called in accordance with the legislation.

The body corporate must hold an AGM within three months after the end of its financial year (Section 58 – Accommodation Module). Section 14 of the Accommodation Module provides that the secretary must serve a notice on each lot owner inviting the lot owner to nominate an individual for election to the committee. The notice must also invite a lot owner to submit motions for inclusion on the agenda of the AGM (section 39 – Accommodation Module).

The applicant claims that the body corporate has not complied with these legislative obligations. In the absence of any contrary submissions from other lot owners, I have concluded that the other lot owners are in agreement with the applicant. The applicant has nominated SSKB to be appointed to act as an administrator. While the other lot owners have not indicated their support or otherwise to the nominee’s appointment, I have taken into consideration the decisions made by the body corporate at the extraordinary general meeting dated 5 October 2004. A copy of the minutes of this meeting included with the application indicates that:

• 28 of the 32 lots were represented.
• 25 of the lots supported a motion to enter into an administration agreement with SSKB.
• 28 lots voted to authorise SSKB to carry out the duties and functions of the secretary and treasurer of the committee.

In the circumstances, I am satisfied that an order is necessary to appoint an administrator to enable the body corporate to hold an AGM in accordance with the legislation. The applicant has nominated SSKB to be appointed as administrator. Marie Coates of SSKB has, by letter dated 5 January 2005, accepted an appointment to hold an AGM for a fee of $500 plus GST with additional travel costs of $650 plus GST. I consider this fee to be paid by the body corporate to be reasonable.

Therefore, I have ordered that SSKB be appointed to convene a proper AGM of the body corporate.