Capri Garden Villas [2006] QBCCMCmr 30 (20 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0874-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21998
Name of Scheme:	Capri Garden Villas
Address of Scheme:	111 Salerno Street ISLE OF CAPRI

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

the Body Corporate for Capri Garden Villas CTS 21998

I hereby order that the body corporate shall call and hold an annual general meeting within 3 months of the date of this order, which meeting shall be deemed to be the 2005 annual general meeting, notwithstanding the provisions of section 60 of the Body Corporate and Community Management (Standard Module) Regulation 1997. I further order that the body corporate secretary shall within 7 days of the date of this order forward a copy of the order and the accompanying statement of reasons for decision to all owners. I further order that owners shall be permitted to submit motions for inclusion on the agenda of the meeting, notwithstanding the provisions of section 41(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997 provided that any such motions are received by the body corporate secretary within 14 days of the date of this order. I further order that the body corporate secretary shall include on the agenda of the meeting any other motions already submitted by owners since 31 July 2005.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0874-2005

"Capri Garden Villas" CTS 21998

ORDER SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the body corporate be permitted to call the annual general meeting outside the period of three months since the financial year end of 31^st July.

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)).

SCHEME DETAILS

Capri Garden Villas is a community titles scheme comprising 29 lots and common property, which is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicant stated that the annual general meeting had not been held before 31 October 2005 because it had been first necessary to hold an extraordinary general meeting to determine certain matters, the resolution of which determined the motions to be placed on the agenda of the annual general meeting. As the extraordinary general meeting was held on 13 October 2005, there was insufficient time thereafter to hold the annual general meeting within the prescribed time.

The body corporate committee resolved by flying minute to lodge this application for an order that the annual general meeting be held outside of the statutory time limit. Those minutes were circulated to all owners on 9 January 2006. The body corporate manager advised on 19 January 2006 that no objections had been received from owners.

On this basis I have determined that it is not necessary to invite owners to lodge a submission in response to the application. Clearly an annual general meeting must be held. Equally clearly it will be out of time, so the means of regularizing such a situation is by way of an order from this office.


DETERMINATION

Section 60 of the Standard Module provides that an annual general meeting (other than a first annual general meeting) must be called and held within 3 months after the end of each of the scheme’s financial years.

I have therefore ordered that the body corporate shall call and hold an annual general meeting within 3 months of the date of my order and that that meeting, notwithstanding its being called and held outside the statutory time limit, shall be deemed to be the annual general meeting for 2005. This order regularizes the meeting to that extent only.

I have also ordered that owners may submit motions for inclusion on the agenda of the meeting provided that such motions are received by the secretary within 14 days of the date of my order. I have done so because it is now almost 6 months since the end of the financial year for this scheme, and there may well be matters which have arisen in that time and which require the consideration of owners before the 2006 annual general meeting. In addition, I have ordered that the secretary shall include on the agenda of the meeting all motions already submitted by owners since 31 July 2005.

Apart from these concessions, the body corporate must comply with all other requirements of the Act and the Standard Module in relation to the meeting.