Hatton Gardens [2008] QBCCMCmr 142 (24 April 2008)

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

I hereby order that Mr. Gavin Fredric of Torio Place Runaway Bay is appointed as Administrator of the Hatton Gardens Body Corporate and is to call, hold, and chair an annual general meeting of the Hatton Gardens Body Corporate within 3 months from the date of this order.

I further order that the Administrator shall issue a notice of the meeting in accordance with sections 42(1), (2) and (3) of the Body Corporate and Community Management (Standard
Module) Regulation 1997 (the Standard Module) and except as provided in this order, the meeting must be called and held in accordance with the Act and the Standard Module.

I further order that 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-
To further delegate any of those powers to another person; and
To incur any expenditure other than expenses are reasonably necessarily and are capable of being authorised and incurred by a committee under the legislation.

I further order that the Administrator is authorised under section 103(1)(c) of the Body Corporate and Community Management (Standard Module) Regulation 1997 to expend an amount of up to $4,500 for the purposes of obtaining insurance cover for the scheme and in the event that there are insufficient funds available to meet this expenditure, the Administrator shall be entitled to fix a special contribution to be levied on the owner of each lot towards that expenditure.

I further order that within seven (7) days of that date of this order, Gary Taylor and Body Corporates Australia Pty. Ltd. shall, at their own cost, deliver to Mr. Gavin Fredric of Torio Place Runaway Bay, the administrator of the Hatton Gardens Body Corporate all paper and electronic records and any other property or assets of the Body Corporate that are in the possession of Gary Taylor and/or Body Corporates Australia Pty Ltd, in accordance with sections 152 and 153 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

Hatton Gardens community titles scheme (Hatton Gardens) consists of 28 lots and common property. The community management statement (CMS) for Hatton Gardens indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered on a Group Title Plan, now known as a Standard Format Plan.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Secretary for Hatton Gardens (applicant) on 9 April 2008. The applicant seeks the following orders:

This application relates to the appointment of an Administrator for the purposes of ensuring that the scheme complies with the requirements of the Act and Standard Regulation Module, including payment of an insurance premium to ensure that there is insurance coverage for the scheme and ensuring that an AGM is held in respect of the last financial year for the scheme.

The Body Corporate previously engaged Body Corporates Australia Pty. Ltd., a company operated by Mr. Gary Taylor, to perform functions normally performed by a body corporate manager including:

However, it would appear that, very little of this work, if any, has been done. The body corporate has been unable to hold an AGM due to the failings of the body corporate manager and it is believed that the insurance policy for the scheme has not been renewed.
Attempts by the body corporate to obtain information from the body corporate manager have been unsuccessful.

Given the failure of the body corporate manager to ensure that the body corporate meets its statutory obligations, the applicant has approached Mr. Gavin Fredric of Torio Place, Runaway Bay as administrator for the purposes of ensuring compliance with the Act and regulations and to call an AGM at which a new body corporate manager can be appointed.

Attached to the application is a letter from Mr. Gavin Fredric offering to act in the position of administrator for the purposes of ensuring compliance with the requirements of the Act and Regulations, and for calling an AGM at which a new body corporate manager can be appointed.

I am satisfied that this is a matter 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:

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(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, an adjudicator may order the body corporate to call a general meeting of its members to deal with stated business or to change the date of an annual general meeting (see Schedule 5 Adjudicator’s Orders), may order the appointment of an Administrator, and may authorise the Administrator to perform obligations of the body corporate or its committee under this 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.

As regards the return of the books and records of the body corporate, section 153 of the Standard Module provides as follows:

(a) a person (the person) engaged as a body corporate manager for a community titles scheme has custody of a document of the body corporate; and

(b) the person holds the document in photographic or electronic image form; and

(c) the person’s engagement as body corporate manager expires and is not renewed, or is otherwise brought to an end.

(a) to give to the body corporate the document in the form of a disc, tape or other article or any material from which writings or messages are capable of being produced or reproduced (with or without the aid of another article or device), if the form is immediately accessible by the body corporate; or

(3) The person must, at the person’s own expense, comply with a requirement of the body corporate under subsection (2).

It is evident from the application that the following matters require urgent attention at this point in time:

I therefore propose to make the following orders:

That Mr. Gavin Fredric of Torio Place Runaway Bay is appointed as Administrator for the body corporate and is to call, hold, and chair an annual general meeting of the Hatton Gardens Body Corporate within 3 months from the date of this order;

That the Administrator shall issue a notice of the meeting in accordance with sections 42(1), (2) and (3) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) and except as provided in this order, the meeting must be called and held in accordance with the Act and the Standard Module;

That 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-
To further delegate any of those powers to another person; and
To incur any expenditure other than expenses are reasonably necessarily and are capable of being authorised and incurred by a committee under the legislation;

That within seven (7) days of that date of this order, Gary Taylor and Body Corporates Australia Pty. Ltd. shall, at their own cost, deliver to Mr. Gavin Fredric of Torio Place Runaway Bay, the administrator of the Hatton Gardens Body Corporate all paper and electronic records and any other property or assets of the Body Corporate that are in the possession of Gary Taylor and/or Body Corporates Australia Pty Ltd, in accordance with section 153 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

The applicant is also seeking an order of an Adjudicator that the administrator be entitled to obtain insurance coverage for the scheme.

Section 103 of the Standard Module provides as follows:
(1) The committee may only carry out a proposal involving spending above the relevant limit for committee spending for the scheme if—

(a) the spending is specifically authorised by ordinary resolution of the body corporate; or

(b) the owners of all lots included in the scheme have given written consent; or

(c) an adjudicator is satisfied that the spending is required to meet an emergency and authorises it under an order made under the dispute resolution provisions; or

I believe that the range of emergency expenditure contemplated by paragraph 103(c) would include expenditure on insurance for the scheme and therefore propose to order that the Administrator is authorised under section 103(1)(c) of the Body Corporate and Community Management (Standard Module) Regulation 1997 to expend an amount of up to $4,500 for the purposes of obtaining insurance cover for the scheme. In the event that there are insufficient funds available to meet this expenditure, the Administrator shall be entitled to fix a special contribution to be levied on the owner of each lot towards that expenditure.

The respondent should be aware that if he does not comply with the order within the specified timeframe (i.e. by returning the books and records of the scheme within 7 days), then it can be enforced against him in the Magistrates Court.[2] Under section 288 of the Act a breach of an order is an offence attracting a fine of up to 400 penalty points (currently $30,000).

[2] See sections 286 and 287 of the Act. See also the factsheet “Enforcement of adjudicators’ orders and penalties” available at www.bccm.qld.gov.au

Number of Scheme:	20562
Name of Scheme:	Hatton Gardens
Address of Scheme:	19 Bourke Street WATERFORD QLD 4133

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Hatton Gardens [2008] QBCCMCmr 142 (24 April 2008)