13 ON 13TH [2006] QBCCMCmr 160 (30 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0046-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	34398
Name of Scheme:	13 ON 13TH
Address of Scheme:	13 Thirteenth Avenue PALM BEACH QLD 4221

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

Robert & Krystyna Henshaw, the Owner of lot 2.

I hereby order that Mr Robert Henshaw is appointed as Administrator to call, hold, and chair an annual general meeting of the "13 on 13th" Body Corporate within 3 months from the date of this order. I further order that 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 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 and may incur expenditure reasonably necessary for the calling and holding of the meeting. I further order that the Administrator shall prepare an agenda for the meeting, including the matters set out in section 26 of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997, and shall issue a notice of the meeting. I further order that the meeting must be held at least 7 days after notice of the meeting is given to the owners of the lots included in the scheme and, except as provided in this order, the meeting must be called and held in accordance with the Act and the Small Schemes Module. I further order that for the purposes of determining the future financial years of the Body Corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0046-2006

"13 ON 13TH" CTS 34398

The applicants, Mr & Mrs Henshaw, the owner of lot 2, have lodged a dispute resolution application with this Office in which they state:

Mr. Robert Henshaw desires the right to call and conduct the first AGM.

It would appear that no AGM has previously been held for the scheme and no committee appointed. The developer and original owner of both lots in the scheme was a Mr Peter Smith who failed to properly establish the body corporate and convene the first AGM for the scheme.

Titles Office records continue to show that Mr. Peter Smith is still the owner of lot 1 but his whereabouts are unknown, and from correspondence on file, I note that Mr. Smith has defaulted on a mortgagee over lot 1.

The usual procedure in dealing with an application such as this is for the applicant to act as administrator or to nominate a particular person to act as administrator for the purposes of calling an annual general meeting at which a committee can be elected and appropriate arrangements made for the future management of the body corporate’s affairs. In effect, Mr. Henshaw has requested that he be appointed to undertake this role. The applicant subsequently advised this office that he is willing to act as administrator until an AGM can be held and a committee appointed.

Statutory Obligations of the Body Corporate.

The statutory requirements regarding the holding of a general meeting are set out in Part 4 of the Small Schemes Module.

The meeting must be held each year after notice of the meeting is given to all lot owners. The notice must state the time and place of the proposed meeting and each member should also be provided with an agenda for the meeting, a proxy form and a voting paper (see sections 22 to 26 of the Small Schemes Module Regulation.

The body corporate must also prepare an administrative and sinking fund budget each financial year. The budgets forecast anticipated expenditure and form the basis for setting the annual contributions payable by the owner of each lot, to the administrative and sinking funds.

Jurisdiction

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
(a) obligations of the body corporate, its committee, or a member of the committee under this Act or the community management statement; or
(b) obligations of the body corporate under another Act.

Section 301 of the Act, headed Appointment of Administrator provides
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.

Determination

If an original proprietor, or owner, fails to convene a first annual general meeting for a body corporate, or if a body corporate fails to regularly hold its required annual general meetings, it is necessary for an adjudicator to make an order appointing an administrator to call and hold an annual general meeting of the body corporate. The purpose of such an order is to re-establish the body corporate on a proper legal footing, and to facilitate the body corporate conducting its affairs in accordance with the legislation, including by maintaining required records and registers.
In the circumstances, I am satisfied that it is reasonable and necessary for me to make an order appointing Mr Robert Henshaw as administrator for the purposes of convening a general meeting of the Body Corporate.

Finally, I would like to point out to owners that the Commissioner’s Office provides information services for people involved in Queensland’s community titles scheme. While the Information Service cannot provide legal advice, officers do provide general information about the Act and the regulation modules, primarily by responding to telephone enquiries. The Information Service has also produced a number of brochures on body corporate issues. The Information Service can be contacted on 1800 060 119 during business hours. The BCCM homepage also contains a wide range of information resources at http://www.dtftwid.qld. gov.au.