Raymond Terrace [2008] QBCCMCmr 23 (23 January 2008)

Number of Scheme:	16660
Name of Scheme:	Raymond Terrace
Address of Scheme:	18 Graham Street cnr Raymond Terrace SOUTH BRISBANE QLD 4101

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

I hereby order that the general meeting of the body corporate now convened and to be held on 12^th February 2008, shall be deemed to be the annual general meeting of the body corporate notwithstanding that the date of the general meeting is outside the period ending three months after the scheme’s financial year.

This is an application dated 21^st January 2008 by the body corporate for Raymond Terrace CTS 16660 (the body corporate) for an order that the scheme may hold its annual general meeting out of the time period required by law.

“Raymond Terrace” Community Title Scheme 16660 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 35 lots in the scheme.

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 the exercise of rights or powers, or the performance of duties, under the Act.

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)).

The application attaches minutes of a resolution of the committee made outside a committee meeting on 17^th January 2008 wherein four committee members unanimously approved the making of this application, proposing to hold the annual general meeting on 12^th February 2008. The financial year’s end for the scheme is 31^st October so that the annual general meting should be held by end of January each year. The body corporate manager for the scheme, AD Body Corporate Managers, advise that notice of the annual general meeting was not distributed to lot owners in time for a meeting at end January.

On 18^th January 2008, the body corporate manager distributed the notice and paperwork for the annual general meeting now proposed to be held on 12^th February 2008.

DETERMINATION

Section 60 Standard Module requires that an annual general meeting be held within three months after the end of the scheme’s financial year. Section 43 Standard Module requires that at least 21 days notice of a general meeting is given to lot owners.

Where such detailed provisions exist, it is “almost inevitable” that from time to time a body corporate may fail to comply with the regulation. It has been held by the District Court that in the circumstances of insubstantial non-compliance, where a body corporate committee is acting bona fide, that a failure to adhere exactly to the regulation should not be allowed to “imperil the actions of bodies corporate or their committees.”^[1]

I note that the date for the annual general meeting is now set for 12^th February 2008, which means that it will be held only 12 days outside the end of the financial year. I note that the notice and paperwork for the meeting has now been sent out to lot owners, presumably in anticipation that this application would be granted.

I am somewhat concerned that where a resolution is made by the committee, whether by “flying minute” or at a committee meeting, in a scheme governed by the Standard Module, lot-owners have 7 days from receipt of a copy of the resolution (or minutes of a committee meeting) to object to the resolution of the committee being put into effect, ie. that this application is made. (Section 37 Standard Module) The committee might carry out its resolution in an emergency without the requisite period of notice being given to lot owners (Section 37(3)(b) Standard Module). However, it is not argued that there is any emergency here.

In the circumstances where the date of the annual general meeting is proposed to be only 12 days late, and that it is a statutory requirement to hold an annual general meeting so that any objections to the making of this application are unlikely to have met with success, I shall make the order as requested by the body corporate.

^[1] Chen –v- Body Corporate for Wishart Village CTS 194822 District Court 29 May 2001 (Judge Boulton DCJ)

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Raymond Terrace [2008] QBCCMCmr 23 (23 January 2008)