Tarcoola [2008] QBCCMCmr 317 (8 September 2008)

Last Updated: 13 October 2008

REFERENCE: 0591-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13453
Name of Scheme:	Tarcoola
Address of Scheme:	81-85 Langshaw Street NEW FARM QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Tarcoola community titles scheme 13453

I hereby order that for the purposes of the Body Corporate and Community Management Act 1997 and pursuant to section 283 of the Act, the next financial year end date of the body corporate for Tarcoola community titles scheme 13453 shall be 31 March 2009. I further order that thereafter each successive financial year for the Body Corporate shall commence on 1 April and end on 31 March.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0591-2008

“Tarcoola” CTS 13453

The scheme
“Tarcoola” community titles scheme 13453 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application is by the Body Corporate for an order to change its financial year to end on 31 March each year.

Jurisdiction
Section 276(1)(b) 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 this Act. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

Section 283 of the Act specifically provides With the consent of the body corporate, the order of the adjudicator may include a change of the body corporate’s financial year and of the dates when later financial years begin.

Determination
The Body Corporate submits that it was recently informed by its body corporate manager that the correct financial year for the scheme ends on 31 December each year. The Body Corporate states that its practice has always been that the financial year commenced on 1 April and ended on 31 March, and that it would be difficult and inconvenient to now change. The Body Corporate provided a copy of financial statements for the year 1 April 1982 to 31 March 1983 and a sinking fund forecast prepared by Leary & Partners Pty Ltd dated 21 June 2006 applying the April to March financial year.

The Body Corporate has provided a copy of the minutes of the Annual General Meeting dated 28 June 2008 which note — after Motion 2 relating to the financial statements was passed — “The committee would like to revert the accounts back to a financial year end of 31st March annually. All owners approved the affixing of the Common Seal to the necessary documentation to be forwarded to the necessary Government authority for this to take place”. The minutes indicate that 13 of the 24 lots included in the scheme were present in person at the meeting.

Generally, an adjudicator will make an order changing a body corporate’s financial year if the adjudicator is satisfied the body corporate has consented to the change. It would seem the minuted note was not a motion included on the agenda of the 2008 AGM. A general meeting may pass a resolution on a motion only if the motion is included as an item of business on the agenda and is stated in the voting paper included in the notice of the meeting (s 87(5), Standard Module). While there may be an issue about the note being a Body Corporate resolution, for the purposes of determining this application I have accepted it given the demonstrated use of the April to March financial year and given the minutes of the 2008 AGM indicate that 13 of the 24 owners were present in person at the meeting and supported the change.

In the circumstances, I am satisfied that the Body Corporate has consented to the proposed change of its financial year and that it is appropriate to make an order to change the financial year end date to 31 March.