59 Hibiscus Circuit [2007] QBCCMCmr 1 (2 January 2007)

Last Updated: 12 March 2007

REFERENCE: 1035-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19685
Name of Scheme:	59 Hibiscus Circuit
Address of Scheme:	59 Hibiscus Circuit, FITZGIBBON, 4018

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

Sarah and Adam Lakeland and Sharon Dai, the owner of Lots 1 and 2 respectively

I hereby order that – (1) Sarah and Adam Lakeland, the owners of Lot 1 are appointed joint Administrators to call, hold and chair an annual general meeting ("the meeting") of "59 Hibiscus Circuit" within one (1) month of the date of this order for the purpose of - • the consideration of motions included on the agenda of the meeting; and • the election of committee members. (2) The Administrators shall hold appointment for the period beginning from the date of this order until the close of the meeting ordered to be held. (3) The owners of both lots will be entitled to submit motions to the Administrators for inclusion on the agenda of the notice of meeting, and provided the motions are received by the Administrators within ten (10) days of the date of this order, the motions will be included by the Administrators on the agenda of the meeting. I further order that – (1) For the purpose of calling, holding and chairing the meeting, the Administrators 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) Executive members of the committee shall be chosen in accordance with section 11(4) of the Body Corporate and Community Management (Standard Module) Regulation 1997. (3) The Administrators must not give notice of the meeting until ten (10) days after the date of this order, and shall give at least one (1) weeks' written notice of the meeting. (4) 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 I further order that, for the purpose of determining the future financial year of the body corporate, the last day of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year end date for the body corporate of 59 Hibiscus Circuit.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1035-2006

"59 Hibiscus Circuit" CTS 19685

APPLICATION

This is an application by Sarah and Adam Lakeland, the owners of Lot 1 and Sharon Dai, the owner of Lot 2 (the Applicants) as owners of both lots in this 2 lot scheme.

The Applicants seek an order that Sarah and Adam Lakeland be appointed to call, hold and conduct a general meeting of the Body Corporate. Ms Dai has provided her verbal consent to appointing the Lakelands as administrator while the Lakelands have given their written consent.

JURISDICTION

"59 Hibiscus Circuit" CTS 19685 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are two lots in the scheme created under a group titles plan of subdivision.

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 make an order appointing an administrator, and authorising the administrator to perform:

(a) obligations of the body corporate, its committee, or a member of the committee under this Act or the community management statement; or

(b) obligations of the body corporate under another Act.

Section 301 of the Act, headed Appointment of Administrator provides –

301 Appointment of administrator

(1) This section applies if an order is made under this chapter appointing an administrator.

(2) The administrator has the powers given to the administrator under the order.

(3) Without limiting subsection (2), the power may include power to levy a special contribution against the owners of lots included in a community titles scheme to meet the cost of complying with obligations to which the order relates and the costs of the administration.

(4) The order may--

(a) withdraw all or particular stated powers from the body corporate, a body corporate manager to whom a power has been given under section 119 or 120, or stated officers of the body corporate
until the administrator has taken the necessary action to secure compliance with the obligations; and

(b) require officers of the body corporate or a body corporate manager mentioned in paragraph (a) to take stated action to help perform the work the administrator is required to perform; and

(c) fix the administrator’s remuneration.

(5) The administrator’s remuneration is to be paid out of the funds of the body corporate.

(6) This section does not apply to the enforcement of a monetary obligation of the body corporate arising under another Act unless it is an enforceable money order.

Section 60 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the "Standard Module") provides that an annual general meeting (other than the first annual general meeting) must be called and held within 3 months after the end of each of the scheme’s financial years. A general meeting (which includes an annual general meeting) may be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions (see section 40(c) of the Standard Module). Moreover, the agenda for an annual general meeting must include the items set out in sections 45 of the Standard Module.

All owners state, in a joint application that they "wish to start a new Body Corporate as the current one is not in use and cannot be found. Unit 1 is under contract for sale with said sale being held up by the lack of Body Corporate details. Both units are free standing with separate driveways. The fence is the only thing in common". It appears that a general meeting has not been held for some time and that statutory requirements have not been met. The owners wish to bring the Body Corporate books records into line with the Body Corporate and Community Management Act 1997.

In the circumstances, I am satisfied that the appointment is necessary to authorise a person to call and hold an annual general meeting. I have also made provision for future financial year end date for this body corporate. Rosetta G JorgensenUnit 1, 17 Oxford Street, Rockhampton Qld 4700xxxxxx2n