Balowrie Place [2007] QBCCMCmr 79 (14 February 2007)

Last Updated: 27 February 2007

REFERENCE: 0129-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	34165
Name of Scheme:	Balowrie Place
Address of Scheme:	26 Balowrie Street HAMILTON QLD 4007

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

Prestige Co. P/L, the Owner of lots 1-10.

I hereby order that the nominee of the original proprietor, Prestige Company Pty. Ltd. is appointed as Administrator to call, hold, and chair an annual general meeting of the Balowrie Place Body Corporate within 3 months from the date of this order. 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 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. I further order that for the purposes of determining the future financial years of the Body Corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0129-2007

"Balowrie Place" CTS 34165

Application
The applicant is the owner of all 10 lots in the scheme and seeks an order that the company’s nominee be appointed as Administrator to call, hold, and chair an annual general meeting of the Balowrie Place Body Corporate.

The purpose of such an order is to establish the body corporate and place it on a proper legal footing. The applicant states that the body corporate has never held a general meeting.

Statutory Obligations of the Body Corporate.

The statutory requirements regarding the holding of a general meeting are set out in Part 4 of the Standard Regulation Module which provides that a meeting must be held each year.
The body corporate must also prepare an administrative and sinking fund budget each financial year. The budgets forecast anticipated expenditure and form the basis for setting the annual contributions payable by the owner of each lot, to the administrative and sinking funds.

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 (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.

Determination

Where a body corporate has failed to hold its required annual general meetings and otherwise failed to comply with its statutory obligations, it is necessary for an adjudicator to make an order appointing an administrator to call and hold an annual general meeting of the body corporate. The purpose of such an order is to establish the body corporate on a proper legal footing, and to facilitate the body corporate conducting its affairs in accordance with the legislation, including, by maintaining required records.

In the circumstances, I am satisfied that it is reasonable and necessary for me to make an order appointing an Administrator to call, hold, and chair an annual general meeting of the Body
Corporate.