Varsity Shores [2006] QBCCMCmr 402 (27 July 2006)

Last Updated: 19 December 2006

REFERENCE: 0564-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30197
Name of Scheme:	Varsity Shores
Address of Scheme:	4 University Drive, ROBINA, 4226

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

The Body Corporate for Varsity Shores

I hereby order that an application for orders that: 1. The Committee might call an Annual General Meeting of lot owners out of time; 2. That Archers Body Corporate Management of 8 Carrara Street, Benowa Qld 4217 Tel: [phone] Fax: [phone] be appointed to provide secretarial services to the Body Corporate for the purposes of calling and convening the Replacement annual general meeting and in the interim administering the affairs (including the operation of the bank account) of the Body Corporate on an interim basis only until the determination of the replacement annual general meeting. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0564-2006

"Varsity Shores" CTS 30197

Application

The Body Corporate for Varsity Shores CTS 30197 applicant has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

3. The Committee might call an Annual General Meeting of lot owners out of time;
4. That Archers Body Corporate Management of 8 Carrara Street, Benowa Qld 4217 Tel: [phone] Fax: [phone] be appointed to provide secretarial services to the Body Corporate for the purposes of calling and convening the Replacement annual general meeting and in the interim administering the affairs (including the operation of the bank account) of the Body Corporate on an interim basis only until the determination of the replacement annual general meeting.

Jurisdiction

Varsity Shores CTS 30197 is a lot scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Accommodation Module). Typically this module is for residential and holiday letting purposes.

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)).

Grounds

The financial year of the scheme ended on 31 March 2006. The committee had called the annual general meeting for 26 June 2006 at 9:00 am. On the previous day, between 3:30 am and 6:00 am the house of the elected Secretary – Mr Silvio Canale - was broken into and the only property stolen was the voting papers for the annual general meeting and all of the secretarial records. In the circumstances the solicitor for the body corporate advised that the meeting would have to be cancelled as approximately one half of the lots were being represented by those voting papers stolen.

It is now sought to obtain a declaratory order that the committee may call a replacement annual general meeting based on the motions which were put to the initial annual general meeting, that updated appropriately for any amending circumstances.

Stewart Silver King and Burns’ appointment as administration manager of the body corporate terminated on 20 June 2006. The committee believes that there may have been some conflict of interest in relation to that administration manager and requests that another interim manager be appointed until the determination of the annual general meeting, that interim appointment to be Archer’s Body Corporate Management.

Determination

The outcomes sought in relation to this application are similar to those requested by Ian MacMaster in file 0482-2006. This file was referred to me for an interim order. A significant departure occurs only in relation to the interim management of the scheme’s business and the organization of the replacement annual general meeting.

In that matter I had the benefit of having sighted the minutes of a committee meeting held on 14 July 2006. In that meeting, the committee had resolved to make application to this office to call the annual general meeting out of time and to engage the services of Archers as the Body Corporate Manager in the interim. I was therefore given the opportunity to consider these wishes in the process of determining my orders under application 0482-2006.

Further, a teleconference was convened in relation to that application on 19 July 2006. At that time, this application had just come to hand.

With the benefit of that teleconference I made the following orders:

1. Stewart Silver King and Burns is appointed as administrator for the purposes of reconvening the annual general meeting which was abandoned on 26 June 2006. For the sake of clarity, it is ordered that the agenda and terms of the motions for the reconvened meeting are to be the same as the abandoned meeting, with the only changes allowed being the changing of procedural dates and contract dates.

2. The reconvened meeting is to occur not less than 3 weeks and two days from the date of the notice of meeting, but not more than 5 weeks from the date of this order.

3. Stewart Silver King and Burns may bill the Body Corporate $60 plus GST for repairing the annual general meeting agenda and associated documents and $120 plus GST for completing and mailing the minutes. Costs and outlays associated with this are also to be met by the Body Corporate.

4. Stewart Silver King and Burns may bill the Body Corporate at $120 an hour plus GST for attendance at, and travel to, the reconvened meeting.

5. The only enclosures Stewart Silver King and Burns may include in relation to the motion with alternatives for the engagement of a body corporate manager are to be the explanatory note (of not more than 300 words) from the original submitter and each of the provider’s standard form of agreement (addressing those matters required under section 76 of the accommodation Module).

6. Logan Irwin is appointed as the returning officer at the cost of $100 per hour during business hours or $150 per hour after hours. Mr Irwin is to bill the Body Corporate for both his services and the cost of prepaid envelopes.

7. Mr Irwin will immediately make at least 122 prepaid envelopes available to Stewart Silver King and Burns.

8. Mr Irwin will receive the voting papers and ballots directly to the post office box "PO Box 7144, Gold Coast Mail Centre 9726".

9. Mr Irwin is required to attend at the reconvened annual general meeting and Stewart Silver King and Burns is to consult him regarding the date to be chosen.
10. Delivery of the unopened voting envelopes to the chairperson is not to occur until after the annual general meeting has commenced.

11. The voting envelopes are not to be opened until delivered by Mr Irwin to the chairperson.

12. Mr Irwin is to be present for and participate in the count of all voting papers and ballots.

13. Stewart Silver King and Burns is excused from complying with any demands made for the return of books and records made by the committee within 5 weeks of this orders or before the reconvened annual general meeting (whichever is earlier) unless ordered otherwise by this office.

14. The decision making of the committee is restricted to the following matters until the annual general meeting is reconvened:

•	the authorisation of routine payment of accounts for contracts or services which are already in place such as utility services and maintenance occurring at less than yearly intervals. Each of these individual payments is to be authorised by a minute of the committee and directed to Stewart Silver King and Burns to effect payment;
•	authorising Stewart Silver King and Burns to provide disclosure statements and search responses and receive the legislated fee for the service.

15. Stewart Silver King and Burns is to collate the time spent on attending to the above routine requests and bill the Body Corporate for services rendered on a monthly basis at the rate of $120 per hour plus GST.

16. Stewart Silver King and Burns is to distribute a copy of this decision to all owners with the documentation for the reconvened annual general meeting and to bill the outlays and additional labour costs associated with this to the Body Corporate at $120 per hour plus GST.

The reasons for the orders made in that matter are discussed within that decision and the decision has been distributed to the committee, and hopefully by now, all owners.

As events have overtaken this application, the orders made under the application 0482-2006 have negated the need for orders to be made under this file. I will therefore dismiss this application.