Weimar [2006] QBCCMCmr 329 (21 June 2006)

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

I hereby order that -

(1) Jenny Ralda Farrell of Unit 3, 59 Errol Avenue, Paradise Point Qld 4216 is appointed as administrator to call, hold and chair an annual general meeting ("the meeting") of Weimar 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.
(2) The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered.

I further order that within seven (7) 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 ("lot owners").

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.

(1) The administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting.

(2) The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 42 and 45 of the Standard Module and all other provisions relating to meetings under Part 4 of the Standard Module.

(3) The administrator must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.

I further order that the administrator shall pay the body corporate insurance policy due on 4 July 2006 from body corporate funds.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0336-2006

"Weimar" CTS 13555

APPLICATION

The applicants have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that a meeting be called to place the body corporate on a proper legal footing.

Weimar is a community titles scheme comprising 4 lots. The scheme was established upon registration of the building units plan (now described as a building format plan) on 22 October 1974. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

The applicants stated in the supporting grounds that no annual general meeting was held last year, and the previous body corporate secretary has resigned. They further stated that no management, secretarial or maintenance issues have been attended to in the period of their ownership (since August 2004) and they are concerned because the scheme’s insurance is due to be paid on 4 July 2006.

The applicants subsequently advised that they were willing to be appointed as administrators for the purpose of calling the meeting, at which it is intended, amongst other things, to appoint a body corporate manager.

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

(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 (Act s276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (Act s284(1)).

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 (Act Schedule 5 section 6). 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 (Act Schedule 5 section 23).

The administrator has the powers given to the administrator under the order (Act s301(2)). Section 301(4) provides that the order may –

An order appointing an administrator may be the only order the adjudicator makes for an application (Act s276(4)(a)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (Act s284(1)).

Section 60 of the Standard Module provides that the original owner must call and hold the first annual general meeting of the body corporate within one month after the first of the following to happen -

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

Moreover the agenda for the meeting must include the items set out in section 62(3) of the Standard Module. If the original owner does not call and hold the first annual general meeting as required by the section, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first annual general meeting within a stated time (section 62(4)).

DETERMINATION

Submissions were sought from all owners. The owners of two of the three remaining lots stated that they were in agreement with the application.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 62(4) of the Standard Module. The appointment is necessary to authorise a person to call and hold an annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis. I have, however, only appointed one of the applicants as administrator, as I consider it unnecessary to have a dual appointment.

I have also authorised the administrator to pay the scheme’s insurance from body corporate funds.

Number of Scheme:	13555
Name of Scheme:	Weimar
Address of Scheme:	59 Errol Avenue, PARADISE POINT QLD 4216

a)	withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and
b)	require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and
c)	fix the administrator’s remuneration.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Weimar [2006] QBCCMCmr 329 (21 June 2006)