Bailey's on Balmoral [2008] QBCCMCmr 305 (28 August 2008)

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

The State of Queensland (represented by the Department of Housing), the Owner of lot 3

I hereby order that Archers Body Corporate Management be appointed as administrator to provide body corporate services at an hourly rate of $170 per hour as per their letter of offer dated 6 August 2008;

I further order that the administrator is to call, hold, and chair an annual general meeting of the Bailey’s on Balmoral 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 24(1), (2) and (3) of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 and the meeting must be called and held in accordance with the Act and the Small Schemes 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 the Administrator is entitled to be remunerated for work done at the rate of $170 per hour and is also authorised to incur such expenditure as is necessary to call and hold the annual general meeting. 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.

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 Archers Body Corporate Management, level 4, 97 Creek Street, Brisbane 4001, all paper and electronic records and any other property or assets of the Body Corporate that are in their possession, in accordance with section 113 of the Small Schemes Module.

Bailey’s on Balmoral Community Titles Scheme is a 6 lot scheme under the Body Corporate and Community Management Act (Act) and the Small Schemes Regulation Module.

This is an application by The State of Queensland (represented by the Department of Housing), which is the owner of lot 6, for the following orders:

The applicant is concerned that the body corporate has not been meeting its statutory obligations. As far as the applicant can establish:

As there is currently no functioning body corporate, the applicant seeks an order that an administrator be appointed to ensure the body corporate regains functionality and recommences functioning in accordance with the Act.

The applicant has sent letters to other members of the body corporate seeking information about running the scheme and the insurance policy of the scheme. However, only one lot owner responded and was unable to provide any further information in this regard. Further, the body corporate is not in possession of the scheme records as these are held by the former body corporate manager, Body Corporates Australia Pty. Ltd. and attempts to retrieve those records have been unsuccessful to date.

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 113 of the Small Schemes 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) accept custody of the document in a photographic or electronic image form; or

(b) require the person to reproduce and give to the body corporate, the document in paper form.

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

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

The applicant has obtained quotations from the following three professional body corporate management firms that are willing to perform the role of administrator:
Archers Body Corporate Management;
TEYS Body Corporate Management; and
Body Corporate Services.

Each of these firms is very experienced in body corporate management and charge a similar hourly fee for performing the role of administrator.

Having regard to the circumstances outlined above, I have decided to make the following orders:

That Archers Body Corporate Management be appointed as administrator to provide body corporate services at an hourly rate of $170 per hour as per their letter of offer dated 6 August 2008;

That the administrator is to call, hold, and chair an annual general meeting of the Bailey’s on Balmoral 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 and 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 the Administrator is entitled to be remunerated for work done at the rate of $170 per hour and is also authorised to incur such expenditure as is necessary to call and hold the annual general meeting. 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.

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 Archers Body Corporate Management, level 4, 97 Creek Street, Brisbane 4001, all paper and electronic records and any other property or assets of the Body Corporate that are in their possession, in accordance with sections 113 of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997.

Number of Scheme:	29593
Name of Scheme:	Bailey’s on Balmoral
Address of Scheme:	24 Collings Street BALMORAL QLD 4171

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Bailey's on Balmoral [2008] QBCCMCmr 305 (28 August 2008)