Queens Arms [2008] QBCCMCmr 342 (22 September 2008)

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

I hereby order that -

(1) Julie Davies of Capitol Body Corporate Administration (PO Box 1020, Redcliffe Qld 4020) is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Queens Arms 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 the meeting shall be called and held in accordance with the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the ‘Standard Module’), and that the agenda for the meeting must include the items stated in section 77(3) of the Standard Module and may also include any other motion properly submitted.

I further order that for the purposes of determining the future financial year of the Body Corporate for Queens Arms, 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.

Queens Arms community titles scheme 23907 (Queens Arms) consists of two lots and common property. The scheme’s community management statement (CMS) indicates the Body Corporate and Community Management (Standard Module) Regulation 2008[1] (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 106056.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Roma Clay Target Clun Inc, the Owner of Lot 1 (applicant)[2] on 11 September 2008 seeking a declaratory order in the following terms:

That Julie Maree Davies of Capitol Body Corporate Administration be appointed to convene an Annual General Meeting of the Body Corporate and that such meeting to be deemed to be the first Annual General Meeting of the Body Corporate.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[3]

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; or

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[4] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[5]

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[6] 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.[7]

An administrator appointed by an adjudicator has the powers given to the administrator under the order.[8] Section 301(4) of the Act provides that the order may:

Queens Arms was was established when it was registered in November 1997. The application indicates that there are no Body Corporate records and no meetings have been held. As such the Body Corporate is not currently operating on a proper legal footing.

Section 77 of the Standard 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 for the meeting must include the items set out in section 77(3) of the Standard 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 (section 77(4)). 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 put the Body Corporate for Queens Arms on a proper legal basis.

The application seeks to appoint Julie Davies of Capitol Body Corporate Administration (Capitol) to convene a general meeting of the Body Corporate. The application initially did not include any documentation indicating whether McDowall Street Roma Pty Ltd, the Owner of Lot 2, consented to the appointment of an administrator generally, or of Capitol specifically. Upon request for clarification of this matter, the applicant supplied only a letter from the solicitors representing Lot 2 on 15 August 2008 which appears to indicate that Lot 2 did not oppose engagement of a body corporarate management firm but sought a quote from Capitol. As this was insufficient evidence of their consent, I requested a member of the Commissioner’s Office to contact the solicitor representing Lot 2. He advised that they had not received a response to their letter and had not received a quote. However, he has now provided written confirmation that, on the basis of the costs quoted in the application, the Owner of Lot 2 consented to the appointment of Capitol. Accordingly, I am satisfied that it is appropriate to appoint Julie Davies of Capitol as administrator.

The applicant is seeking to sell their lot. It is apparently a condition of sale that the Body Corporate is established and functioning on settlement. Documents in the application variously refer to 12 September and 26 September 2008 as the deadlines for this to occur. This order has been made as quickly as possible, given the lateness of the application and the absence of key information. This order will enable the Body Corporate, which was established in 1997, to commence functioning in accordance with the legislative requirements. However I cannot comment on whether the issuing of this order will satisfy the contractual requirements of the purchaser.

[1] As of 30 August 2008 the new Standard Module came into force, replacing the Body Corporate and Community Management (Standard Module) Regulation 1997 which applied until that date

[2] The application form also names McDowall Street Roma Pty Ltd, the Owner of Lot 2, as an applicant. While it appears this owner does not oppose the application, it is clear they are not in fact an applicant.
[3] See sections 227, 228, 276 and Schedule 5 of the Act
[4] Section 276(2) of the Act
[5] Section 284(1) of the Act
[6] See Item 6 of Schedule 5 to the Act
[7] See Item 23 of Schedule 5 to the Act
[8] See section 301(2) of the Act

Number of Scheme:	23907
Name of Scheme:	Queens Arms
Address of Scheme:	92 McDowall Street ROMA QLD 4455

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Queens Arms [2008] QBCCMCmr 342 (22 September 2008)