Horizons Highgate Hill [2007] QBCCMCmr 20 (20 June 2007)

Last Updated: 6 July 2007

REFERENCE: 0263-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27560
Name of Scheme:	Horizons Highgate Hill
Address of Scheme:	76 - 78 Gladstone Road HIGHGATE HILL QLD 4101

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

Ashley Robert Lynch the Owner of lot 24

I hereby order that: 1. Trevor Matthews of R Matthews & Son Pty Ltd of PO Box 65, Annerley Q 4103 is appointed as administrator to call, hold and chair a general meeting (the meeting) of the body corporate for "Horizons Highgate Hill" community titles scheme 27560 (the body corporate) in accordance with this order and within 3 months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting and deciding committee member positions. 2. The administrator shall hold the appointment for the period beginning on the date of this order until the close of the meeting ordered to be held. I further order that for the purposes of the Body Corporate and Community Management Act 1997 (the Act), the meeting shall be deemed to be an annual general meeting of the body corporate. I further order that for the purposes of calling and chairing the meeting, the administrator shall have all the powers of chairperson, secretary and treasurer of the body corporate and of the committee, with the exception of the following powers- 1. To further delegate any of those powers to another person; and 2. To incur any expenditure apart from that reasonably necessary for the calling and holding of the meeting, and apart from expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). I further order that the administrator must give at least twenty one (21) days written notice of the meeting. I further order that the meeting shall otherwise be called and held in accordance with the Act and the Standard Module.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0263-2007

"Horizons Highgate Hill" CTS 27560

ORDER SOUGHT

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

Seeking an order that an administrator call and hold the annual general meeting for the financial year ending 30/11/2006.

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 (Act s276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (Act s284(1)).

If an order is made appointing an administrator, the administrator has the powers given to the administrator under the order (Act s301(2)). If an adjudicator appoints an administrator to perform obligations of the body corporate, the committee or a member of the committee, anything done by the administrator under the authority given under the order is taken to be done by the body corporate, committee or committee member (Act s278).

SCHEME DETAILS

Horizons Highgate Hill is a community titles scheme comprising 29 lots and common property. The scheme was established upon registration of the building format plan in December 1999, and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicant stated that the (then) body corporate manager had failed to hold annual general meetings within three months of the end of the body corporate’s financial year, which ends on 30 November. He further stated that the annual general meeting for 2005, which should have been held before 28 February 2005, was not held until 8 October 2005 and the annual general meeting for 2006, which also should have been held before 28 February 2006, was not held until 9 December 2006. The 2007 annual general meeting still has not been held.

In addition, the applicant stated that the body corporate manager had not issued levy notices for over 18 months, and the last date on which levies had been paid was 1 April 2005.

The applicant provided a letter dated 8 May 2007 from Trevor Matthews, in which he consented to an appointment as administrator for the purpose of calling and holding the requisite meeting.

All owners and the body corporate committee were invited to respond to the application. Two submissions were received from owners.

The body corporate manager tendered his resignation on 25 May 2007.

DETERMINATION

The position in which the body corporate now finds itself is untenable. It is without the services of a body corporate manager, who, in any event, would appear not to have been performing for some time the role for which he had been engaged. Levy notices have not been issued to owners for over 18 months, and the day to day administration of the body corporate seems to have been sadly neglected.

In the circumstances, I am satisfied that an order is necessary to appoint an administrator to enable the body corporate to hold an annual general meeting and to otherwise place the body corporate on a proper legal footing. I have made relevant orders to facilitate this outcome.