Viva Apartments [2006] QBCCMCmr 679 (19 December 2006)

Last Updated: 27 March 2007

REFERENCE: 1046-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	33172
Name of Scheme:	Viva Apartments
Address of Scheme:	38 Robertson Street FORTITUDE VALLEY QLD 4006

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

Body Corporate,

I hereby order that any two of Alan Buckle, Muriel Ingevics and Allen Ryall, acting together, being directors of Ernst Body Corporate Management Pty Ltd may sign cheques for and on behalf of the body corporate for Viva Apartments CTS 33172, and may authorise the payment of accounts and debts owed by the body corporate at their discretion, from the date of this order until such time as executive committee members are elected to the body corporate, or until three months following the date of this order, which ever first occurs. I further order that the said directors keep proper records of their interim financial management period, and account to the new committee, at the first committee meeting following its election.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1046-2006

"Viva Apartments" CTS 33172

APPLICATION

This is an application dated 13^th December 2006, and amended on 14^th December 2006, by the body corporate for Viva Apartments, as represented by Ernst Body Corporate Management Pty Ltd, (the body corporate manager) for the scheme, for a declaratory order that the body corporate manager might have power to pay creditors of the body corporate in the circumstances where the body corporate has casual vacancies on the current committee for all executive member positions.


JURISDICTION

"Viva Apartments" Community Titles Scheme 33172 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). There are 44 lots in the scheme.

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)).


SUBMISSIONS

The body corporate manager explains that there are no executive members on the committee since the resignation of the treasurer in or about September 2006, followed by the resignation of the chairperson, David Mitchell on 31^st November 2006.

Following the resignation of the treasurer, an ordinary member Justin Pardy (Mr Pardy) indicated that he would be willing to fill the casual vacancy in accordance with the legislative requirement that casual vacancies should be filled within one month of becoming vacant. (Section 23C Accommodation Module). However, Mr Pardy has since early December advised the body corporate manager that he would be away in the UK for an indefinite period.

The remaining three ordinary members of the committee are not willing to be appointed as executive members, in the casual vacancies. The body corporate has been without executive committee members since 1^st December 2006.

The annual general meeting (AGM) is to be held on 22^nd January 2007, and the body corporate manager has called for nominations for committee members at the AGM.
DECLARATION

This Office spoke to ordinary committee member Louise Gottardo on receipt of this application, who was not willing to take on the role. This Office is advised by the body corporate manager that of the remaining ordinary committee members, Mr Pardy is overseas, Colin Freeman is interstate, Alison Barrett , who is described as Secretary in the minutes of a committee meeting held on 31^st October 2006, does not want to have that responsibility alone, and Brett Worden is unavailable.

The directors of the body corporate manager named as Alan Buckle, Muriel Ingevics and Allen Ryall have by letter dated 14^th December 2006 to this Office indicated that they are willing to take responsibility for the payment of body corporate debts for the interim period until the AGM.

In the circumstances which have arisen in this scheme, I declare that any two of the directors of the body corporate manager, named as Alan Buckle, Muriel Ingevics and Allen Ryall, acting together, are hereby authorised without further instruction from the members of the committee, to write cheques from body corporate funds and pay debts to creditors of the body corporate, until such time as a new committee is elected and executive positions are filled.

The directors of the body corporate manager shall keep proper records and account to the new committee at the first committee meeting following its election. There is no requirement for payments made in the interim to be subsequently ratified by the committee. The directors as named have the discretion to approve payments and make payments as they arise in the interim period.