Bale Port Douglas Residential [2006] QBCCMCmr 458 (22 August 2006)

Last Updated: 19 December 2006

REFERENCE: 0636-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	34781
Name of Scheme:	Bale Port Douglas Residential
Address of Scheme:	Port Douglas Road PORT DOUGLAS QLD 4877

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

MFS Bale Resorts Pty Ltd, the original owner, and owner of lots 1-6, 9, 11, 14, 15, 17, 19-20, 25, 28, 28, 35, 41, 903

I hereby order that - (1) Stewart Silver King & Burns is appointed as administrator to call, hold and chair an annual general meeting ("the meeting") of Bale Port Douglas Residential 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 40 and 43 of the Accommodation Module and all other provisions relating to meetings under Part 4 of the Accommodation 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 meeting shall be deemed to be the first annual general meeting of the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0636-2006

"Bale Port Douglas Residential" CTS 34781

ORDER SOUGHT

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

Request that an extension be granted to hold the 1^st annual general meeting within one month of an order being sought.

Stewart Silver King and Burns is to call the 1^st annual general meeting

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 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 (section 301(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.

An order appointing an administrator may be the only order the adjudicator makes for an application (section 276(4)(a)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 60 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation 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;

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

Moreover the agenda for the meeting must include the items set out in section 60(3) of the Accommodation 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 60(4)).

BACKGROUND

The applicant advised that the time period to hold the first annual general meeting in accordance with the requirements of the Accommodation Module has elapsed, and an extension of time within which to do so is sought. The applicant explained that a document required to be attached to the agenda for the meeting was misplaced by the applicant’s lawyers, and has only recently been located.

DETERMINATION

The entity nominated as administrator has consented in writing to the appointment.

In the circumstances, I am satisfied that an order should be made in terms authorised by section 60(4) of the Accommodation Module. The appointment is necessary to authorise an entity to call and hold the first annual general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.