Mooloolaba Professional [2007] QBCCMCmr 649 (19 November 2007)

Last Updated: 4 January 2008

REFERENCE: 0791-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	35077
Name of Scheme:	Mooloolaba Professional
Address of Scheme:	First Ave Mooloolaba QLD 4557

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

the Body Corporate for Mooloolaba Professional

I hereby order that Archers Body Corporate Management Pty Ltd (of PO Box 631, Maroochydore Qld 4558) is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Mooloolaba Professional within three (3) months of the date of this order, and 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 for the purposes of the Body Corporate and Community Management Act 1997 (‘the Act’), the meeting shall be deemed to be the First Annual General Meeting of the Body Corporate. I further order that 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. I further order that the meeting shall be called and held in accordance with the Act and the Body Corporate and Community Management (Commercial Module) Regulation 1997 (the ‘Commercial Module’), and that the agenda for the meeting must include the items stated in section 48(3) of the Commercial Module along with any other motion properly submitted. I further order that for the purposes of determining the future financial year of the Body Corporate for Mooloolaba Professional, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0791-2007

"Mooloolaba Professional" CTS 35077

Mooloolaba Professional community titles scheme (Mooloolaba Professional) consists of two lots and common property. The scheme’s community management statement indicates the Body Corporate and Community Management (Commercial Module) Regulation 1997 (Commercial Module) applies to the scheme.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Mooloolaba Professional on 8 October 2007 seeking a declaratory order in the following terms:

The applicant submits that the Body Corporate have never held a general meeting and requests that an order be given to Archers Body Corporate Management to set up the body corporate records and convene an annual general meeting and that meeting be deemed the first annual general meeting of the body corporate..

The application includes written consent to the order sought from the company nominees of each of the two companies which own lots in the scheme.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[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 claimed or anticipated contravention of the Act or the community management statement, or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement. 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, and without limiting the power 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.^[2] 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 or the obligations of the body corporate under another Act.^[3] An administrator appointed by an adjudicator has the powers given to the administrator under the order.^[4]

DETERMINATION

Section 48 of the Commercial Module provides that the original owner must call and hold the first annual general meeting (AGM) of a body corporate within two months after the first of the following:

(a) more than 50% of the lots are no longer in the ownership of the original owner;

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

Mooloolaba Professional was established when it was registered in February 2006. Accordingly, at the latest the first AGM should have been called by the original owner and held by September 2006.The parties agree that the first AGM has not been held. As such the Body Corporate is not currently operating on a proper legal footing.

If the original owner does not call and hold the first AGM as required, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first AGM within a stated time. However it should be noted that the making of such an order does not relieve the original owner of their liability for failing to call the first AGM within the required timeframe.^[5]

Both owners have consented to the appointment of Archers Body Corporate Management Services to convene a general meeting of the Body Corporate. In the circumstances, I am satisfied that an order should be made for the appointment of Archers as administrator to call and hold the first AGM. This will enable the Body Corporate for Mooloolaba Professional to conduct its affairs in accordance with the legislation. For the avoidance of doubt in the ongoing operations of the scheme, I have deemed the end of the financial year of the end of the month preceding the month in which the meeting is held.

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^[1] See sections 227, 228, 276 and Schedule 5 of the Act
^[2] See Item 6 of Schedule 5 to the Act

^[3] See Item 23 of Schedule 5 to the Act

^[4] See section 301(2) of the Act
^[5] See section 48(1), (4) and (5) of the Commercial Module