26 Berry Street [2005] QBCCMCmr 8 (7 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0006-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29655
Name of Scheme:	26 Berry Street
Address of Scheme:	26 Berry Street SPRING HILL QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Catherine Mary BAILEY, as a co-owner of Lot 3,

I hereby order that – 1. Teys Strata (Brisbane( Pty Ltd, of Level 3, 345 Ann Street, Brisbane Qld 4000 (GPO Box 5256 Brisbane Qld 4001) is appointed Administrator to call, hold and chair a general meeting ("the meeting") of the body corporate 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 the appointment for the period beginning from the date of this order until the close of the meeting ordered. 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, or if there is no roll then to each person whose name should appear on the roll, at an address that is most likely to find them. 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. (1) The meeting must consider and determine the matters set out in section 38(3) of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 ("the Small Schemes Module"). (2) The nomination and election procedures for the election of committee members shall be in the same manner as provided for in Division 4 of Part Three of the Small Schemes Module. (3) The Administrator must give at least two (2) weeks written notice to owners inviting them to submit motions for inclusion on the agenda of the meeting. (4) The Administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order. (5) The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 24 and 26 of the Small Schemes Module, and all other provisions relating to meetings under Part 4 of the Standard Module. (6) The meeting may also consider any other motion properly before it.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0006-2005

"26 Berry Street" CTS 29655

The applicant, Catherine Bailey of Lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"An order to call a general meeting is sought."

JURISDICTION:
This is a dispute between an owner (the applicant Bailey) and the body corporate (the respondent) concerning a failure by the body corporate to call meetings and conduct its affairs in accordance with the legislation. This is a matter which comes within the dispute resolution provisions of the Act (see sections 227, 228 and 276 of the Act) and may be determined by a departmental adjudicator.

General powers of an Adjudicator in making an order:
Section 276(1) of the Act 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 (see section 276(2) of the Act).

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 (see Item 6 of Schedule 5 to the Act) 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.

An order appointing an administrator may be the only order the adjudicator makes for an application (see section 276(4) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (see section 284 of the Act).


APPLICATION:
The applicant submits that the body corporate has not held a meeting since 19 October 2001 and funds in the body corporate bank account amount to only $39.74 – presumably this would have been the statutory First Annual General Meeting called by the original owner/developer.

Two of the other three owners have given their consent to the application by signing copies of the application; being Ian Poole of Lot 4 and Mr O’Brien director of O’Brien Built Pty Ltd of Lot 2. The remaining co-owners of Lot 1, Roland Neil and Georgina Catherine King, have been contacted but have not responded. The legislation requires that the body corporate must properly administer itself, including the holding of meetings, proper insurance, enforcement of by-laws, maitenance of the common property and maintaining required records. The applicant and consenting owners wish to hold a meeting to put the body corporate on a proper legal footing.

DETERMINATION:
"26 Berry Street" was established as a building format plan on 21 September 2001 and comprises four lots. It is regulated under the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 ("the Small Schemes Module").

The applicant together with the two consenting owners represent a majority of owners comprising the body corporate. In the circumstances, I am satisfied that an order should be made in terms authorised by section 38(4) of the Small Schemes Module regulations. Teys Strata (Brisbane) Pty Ltd has consented to the appointment. I have therefore ordered that a meeting be held which will allow the body corporate to properly re-establish itself in order to administer its affairs in accordance with the legislation.