Fernleigh Court [2008] QBCCMCmr 267 (6 August 2008)

Last Updated: 12 September 2008

REFERENCE: 0604-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22667
Name of Scheme:	Fernleigh Court
Address of Scheme:	14 Fernleigh Court CURRUMBIN QLD 4223

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Joanna Brady, a co-owner of Lot 1, Joseph Frew, the owner of Lot 2 and Rosalind Crawford, the owner of Lot 4.

I hereby order that Rosalind Crawford of 18 Fernleigh Court Currumbin, is appointed as administrator to call, hold and chair a general meeting (the meeting) of the body corporate for Fernleigh Court community titles scheme 22667 in accordance with this order and within 3 months of the date of this order. I further order that 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 and 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, with the exception of the following powers: To further delegate any of those powers to another person; and To incur any expenditure apart from that reasonably necessary for the calling and holding of the meeting, and apart from expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). I further order that within 14 days of the date of this order, the administrator shall serve a notice on each lot owner in accordance with section 13(2) and (3) of the Standard Module inviting each lot owner to give to the administrator by the time stated in the notice: A written nomination of an eligible individual that complies with section 13A of the Standard Module; and Motions for inclusion on the agenda of the meeting. I further order that the administrator must allow at least 14 days for each lot owner to submit a nomination and motions, and that after the time allowed has expired the administrator must, except as provided in this order, call and hold the meeting in accordance with the Act and the Standard Module. I further order that the meeting shall be deemed to be an annual general meeting of the Body Corporate and that the agenda for the meeting include the matters stated in section 45(3) of the Standard Module and any other motion validly submitted. I further order that for the purposes of determining the future financial year of the Body Corporate, 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 0604-2008

“Fernleigh Court” CTS 22667

The scheme
“Fernleigh Court” community titles scheme 22667 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

Application
This application is by Joanna Brady, a co-owner of Lot 1, Joseph Frew, the owner of Lot 2 and Rosalind Crawford, the owner of Lot 4 (Applicants) against the Body Corporate for an order that an annual general meeting be held.

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 claimed or anticipated contravention of the Act; or 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 (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

Investigation
An adjudicator may require a party to the application who may be able to help resolve the issues raised by the application to give information to the adjudicator (s 271(1), Act).

On 29 July 2008, Rosalind Crawford was asked:

1. To nominate a person who the Applicants were willing to nominate to call the meeting being requested.
2. The name of the person who had possession of the Body Corporate books and records.
3. Whether the owner of Lot 3 was aware of the application.
   

By email of the same date, Ms Crawford stated that she would be willing to call the meeting and that she had possession of the Body Corporate’s books and records. By email sent on 4 August 2008, Fenton Norrie, the owner of Lot 3 consented to the holding of a Body Corporate meeting.

Determination
In making the application, the Applicants stated that a general meeting has not been held since 23 March 2005. The Applicants request authority to now hold an annual general meeting.

A body corporate must hold and conduct meetings as prescribed under the regulation module applying to the scheme (s 104, Act). An annual general meeting must be held within 3 months after the end of each of the scheme’s financial years (s 60, Standard Module). An annual general meeting is integral to the management of a body corporate given that consideration must be given to reviewing the past financial year’s income and expenditure, considering future spending needs through the adoption of an administration fund budget and a sinking fund budget; fixing contributions to be paid by lot owners; determining whether the next financial year’s accounts should be audited; reviewing insurance (all statutory motions); and electing a committee.

In this scheme, it is apparent that an annual general meeting has not been held for a number of years contrary to the section 60 requirement. If an order is not made authorising a person to be appointed as administrator to call and hold an annual general meeting, the convening and conduct of the meeting by the Body Corporate could be invalidated. This would leave the legal status of the Body Corporate in doubt, as well as the validity of any decisions purportedly passed at an annual general meeting. This would clearly not be in the interests of owners.

While the Applicants did not initially nominate a person to call and hold the meeting, I am satisfied that Ms Crawford acted on behalf of the Applicants in nominating herself to being appointed. If an adjudicator appoints an administrator to perform obligations of the body corporate, the committee or a member of the committee, anything done by the administrator under the authority given under the order is taken to be done by the body corporate, committee or committee member (s 278, Act). If an order is made appointing an administrator, the administrator has the powers given to the administrator under the order (s 301(2), Act).

I am also satisfied that all owners agree with the terms of the application.

In these circumstances, I have ordered that the meeting to be called and held by Ms Crawford is deemed to be an annual general meeting of the Body Corporate. I have also made allowance for the determination of the end of financial year of the Body Corporate. The order also provides an opportunity for owners to nominate an eligible individual for committee membership and to submit motions for consideration at the meeting. If owners are uncertain about nominating for the committee, information is available from the information service provided by the Commissioner. The information service can be contacted on 1800 060 119 during business hours. The internet address is www.justice.qld.gov.au/bccm.