Chester Views No 1 [2007] QBCCMCmr 5 (4 January 2007)

Last Updated: 15 January 2007

REFERENCE: 0624-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32552
Name of Scheme:	Chester Views No 1
Address of Scheme:	13A Chester Street THURSDAY ISLAND QLD 4875

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

Lime Valley Pty Ltd, Peter & Trevina Fraser, Kenneth & Joyce Gray, the Owners of lot 2

I hereby order that - (1) Stewart Silver King and Burns Community Managers of 99 Burnett Street Buderim, Queensland is appointed as administrator to call, hold and chair an annual general meeting ("the meeting") of Chester Views No.1 Community Titles Scheme 32552 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 and the election of committee members. (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. (2) The nomination and election procedures for the election of committee members shall be in the same manner as provided for in sections 12 and 13 of the Small Schemes Module. (3) The administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting. (4) The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 24 and 26 of the Small Schemes Module and all other provisions relating to meetings under Part 4 of the Small Schemes Module. (5) 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. I further order that, for the purposes of the Body Corporate and Community Management Act 1997 (the Act) and pursuant to section 283 of the Act, the next financial year end date of the Body Corporate for Chester Views No. 1 Community Titles Scheme 32552 shall be 30 June 2007 in place of the previous financial year end date. I further order that thereafter, each successive financial year for the Body Corporate for Chester Views No.1 Community Titles Scheme 32552 shall commence on 1 July and terminate on 30 June the next year, respectively.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0624-2006

"Chester Views No 1" CTS 32552

Scheme

"Chester Views No. 1" was registered as a standard format plan of subdivision on 11 May 2004 comprising 2 lots and common property. It is regulated by the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (Small Schemes Module).

Application

This application is brought by the owners of lot 2, Lime Valley Pty Ltd, Peter & Trevina Fraser, Kenneth & Joyce Gray seeking orders that an administrator be appointed to call, hold and chair an annual general meeting of Chester Views No.1 to re-establish the body corporate and that the end of financial year date be changed to 30 June.

The applicants state in their grounds that the scheme was registered in 2004, with only one general meeting having been held since, on 28 May 2004. The building is currently being maintained and insured by the owners of lot 2 and original owners of both lots. The applicants wish to re-establish the body corporate and to administer its affairs in accordance with the legislation.

The applicants nominated Stewart, Silver King and Burns Community Managers of 99 Burnett Street, Buderim, Queensland as administrator at a cost of $3,500 plus GST and included their written consent to the appointment.

Submissions

A submission in response to the application was sought from the owner of lot 1. No submission was received. A representative of the owner of lot 1 was contacted by telephone by an administrative officer from this office to ask whether a submission was to be made. Mr Ian Eccles advised that no submission would be made by the owner of lot 1.

Jurisdiction

This is a dispute which falls within the dispute resolution provisions of the Act.^[1]

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)).

Determination

Appointment of Administrator

It is apparent that the body corporate is failing to function in accordance with the legislation, particularly in relation to its administration and the calling and holding of meetings. In the circumstances, I am satisfied that the appointment of an administrator is necessary to authorise a person to call and hold a general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.

However, in circumstances where the amount of $3,500 (plus GST) quoted by Stewart, Silver, King and Burns Community Managers for the services required is more than eight times the relevant limit for major spending of $400 for Chester Views No.1 and where the owner of lot 1 has not consented to the application and declined to make a submission in response to it, despite being invited to do so, I declined to make the order sought in the absence of at least one other quotation.^[2] The applicants were therefore requested, by letter dated 23 November 2006, to provide at least one additional quotation for the services required. The applicants submitted a quotation from Cambridge Management Services Pty Ltd, dated 11 July 2006, for $4,000 per annum plus GST and excluding disbursements.

I have therefore ordered that Stewart, Silver, King and Burns Community Managers be appointed as administrators to call, hold and chair one general meeting for the body corporate, as their quote was the least expensive of the two provided by the applicants.

The costs of the administrator are to be shared amongst the owners of the two lots in accordance with the contribution schedule lot entitlements for the scheme. The owner of lot 1 will therefore pay 1/3 of the costs and the owners of lot 2 will pay 2/3 of the costs.

Change of Financial Year

Section 283 of the Act specifically provides –
283. Change of body corporate’s financial year.
With the consent of the body corporate, the order of the adjudicator may include a change of the body corporate’s financial year and of the dates when later financial years begin.

The applicants have not provided any specific grounds in relation to the requested change in financial year for the body corporate, nor has any consent of the body corporate to the change be provided.

However, I am mindful that only one general meeting of the body corporate has ever been held and that the owner of lot 1, although not expressly consenting to the change in financial year date, has been given sufficient opportunity to refuse to consent and has declined to do so. In these circumstances, I am satisfied that a financial year end date of 30 June is an appropriate date to adopt in re-establishing this body corporate. I have ordered accordingly.

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^[1] See sections 226 and 227 Act
^[2] Section 65 Small Schemes Module requires that at least two quotations for supplying services must be obtained where the amount involved exceeds the body corporate’s limit for major spending.