Dingo Park [2008] QBCCMCmr 334 (18 September 2008)

Last Updated: 14 October 2008

REFERENCE: 0796-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30972
Name of Scheme:	Dingo Park
Address of Scheme:	Webb Road WOODSTOCK QLD 4816

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
KJ and SJ Sheahan Investments Pty Ltd, Owner of Lots 3-6, and Reidies (Qld) Pty Ltd, the Owner of Lot 7:

I hereby order that - (1) Archers Body Corporate Management Pty Ltd (PO Box 631, Maroochydore Qld 4558) is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Dingo Park within three (3) months of the date of this order. (2) The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered. I further order that for the purposes of the Body Corporate and Community Management Act 1997 (‘the Act’), the meeting shall be deemed to be the First Annual General Meeting of the Body Corporate. I further order that for the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of the 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; or - to incur any expenditure apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation. I further order that, except as provided in this order, the meeting shall be called and held in accordance with the Act and the Body Corporate and Community Management (Small Scheme Module) Regulation 2008 (the ‘Small Schemes Module’), and that the agenda for the meeting must include the items stated in section 38(3) of the Small Schemes Module and any other motion properly submitted. I further order that for the purposes of determining the future financial year of the Body Corporate for Dingo Park, 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 0796-2008

“Dingo Park” CTS 30972

Dingo Park community titles scheme 30972 (Dingo Park) consists of six lots and common property. The scheme’s community management statement indicates the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 (Small Schemes Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Survey Plans 146640 and 207132.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by KJ and SJ Sheahan Investments Pty Ltd, Owner of Lots 3-6, and Reidies (Qld) Pty Ltd, the Owner of Lot 7 (applicants) on 16 September 2008.

The application sought a declaratory order in the following terms:

The Body Corporate registered on 31/03/2003 and there are no records of the establishment of the Body Corporate.

The Applicant wishes to establish and put the Body Corporate on a proper legal footing.

The application includes written consent to the orders sought from the owners of all lots the scheme, including the applicants and Jennifer and Jeffrey Reid who are the Owners of Lot 8.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions[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 a claimed or anticipated contravention of the Act or the community management statement, or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[2] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]

Specifically, and without limiting the power to make an order under section 276(1), 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[4] or alternatively, the adjudicator may order the appointment of an administrator, and authorise the administrator to perform obligations of the body corporate, its committee, or a member of its committee under this Act or the community management statement or the obligations of the body corporate under another Act[5].

An administrator appointed by an adjudicator has the powers given to the administrator under the order.[6] Section 301(4) of the Act provides that the order may:

(a) withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and
(b) require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and
(c) fix the administrator’s remuneration.

DETERMINATION

Dingo Park was established when it was first registered. Titles records show the plan was first recorded in December 2002. The application indicates that there are no records of any meeting of the Body Corporate. As such the Body Corporate is not operating on a proper legal footing.

All owners have consented to the appointment of Archers Body Corporate Management to convene a general meeting of the Body Corporate.

Section 38of the Small Schemes Module provides that the original owner must call and hold the first annual general meeting of a body corporate within two months after the first of the following:

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.
The agenda must include the items set out in section 38(3) of the Small Schemes Module.

If the original owner does not call and hold the first annual general meeting as required by the section, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first annual general meeting within a stated time[7]. The purpose of such an order is to re-establish the body corporate and to facilitate the Body Corporate conducting its affairs in accordance with the legislation.

In the circumstances, I am satisfied that an order should be made for the appointment of an administrator to call and hold a general meeting in order to establish the Body Corporate on a proper legal basis.

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[1] See sections 227, 228, 276 and Schedule 5 of the Act
[2] Section 276(2) of the Act
[3] Section 284(1) of the Act
[4] See Item 6 of Schedule 5 to the Act
[5] See Item 23 of Schedule 5 to the Act
[6] See section 301(2) of the Act
[7] Section 77(4) of the Standard Module