26 Avocado [2006] QBCCMCmr 356 (3 July 2006)

Last Updated: 19 December 2006

REFERENCE: 0339-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21274
Name of Scheme:	26 Avocado
Address of Scheme:	4 Avocado Drive CABOOLTURE QLD 4510

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

the Body Corporate for 26 Avocado

I hereby order that - (1) Kenneth Pointon of Bribie Island Body Corporate Services (PO Box 747, Bribie Island, Qld 4507) is appointed as administrator to call, hold and chair an annual general meeting ("the meeting") of 26 Avocado 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. (2) The administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting. (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 meeting shall be deemed to be the first annual general meeting of the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0339-2006

"26 Avocado" CTS 21274

The 26 Avocado community titles scheme (26 Avocado) consists of 2 lots and common property. The scheme’s community management statement indicates the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme.

APPLICATION

This application was purportedly made by the Body Corporate for 26 Avocado (based on a request by the owner of Lot 1) on 10 May 2006 under the Body Corporate and Community Management Act 1997 (Act). The application sought the following declaratory order:

To appoint administrator Bribie Island Body Corporate Management Service to establish body corporate.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the owner of Lot 2 with an invitation to respond to the matters raised in the application. A submission was received from the owner of Lot 2. A dispute resolution recommendation was made referring the matter to departmental adjudication.

JURISDICTION

I am satisfied that this is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

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 claimed or anticipated contravention of the Act or the community management statement, or the exercise of rights or powers, or the performance of duties, under 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 (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Specifically, and without limiting the power 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 or the obligations of the body corporate under another Act (see Item 23 of Schedule 5 to the Act).

An administrator appointed by an adjudicator has the powers given to the administrator under the order (Act s301(2)). Section 301(4) provides that the order may:

(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.

DETERMINATION

26 Avocado was established when it was registered in February 1985. The application states that the current owners can find no records to suggest that the first Annual General Meeting has ever been held. As such the Body Corporate is not currently operating on a proper legal footing.

Both owners have consented to the appointment of Kenneth Pointon of Bribie Island Body Corporate Management Services to "restart" the Body Corporate.

Section 62 of the Standard Module provides that the original owner must call and hold the first annual general meeting of the body corporate within two months 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;

(b) 6 months elapse after the establishment of the scheme.

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)). The purpose of such an order is to re-establish the body corporate and to facilitate the body corporate conducting its affairs in accordance with the legislation.

In the circumstances, I am satisfied that an order should be made for the appointment of an administrator to call and hold a general meeting in order to put the Body Corporate for 26 Avocado onto a proper legal basis.