Hayden Lodge [2008] QBCCMCmr 359 (2 October 2008)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Anne Marie Garrigan, the owner of Lot 1

I hereby order that Anne Marie Garrigan, the owner of Lot 1 is appointed as administrator to call, hold and chair a general meeting (the meeting) of the body corporate for Hayden Lodge community titles scheme 34561 (Body Corporate) in accordance with this order and within 3 months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting and deciding the committee positions of secretary and treasurer.

I further order that for the purposes of the Body Corporate and Community Management Act 1997 the meeting shall be deemed to be an annual general meeting of the Body Corporate and, 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 Schemes Module) Regulation 2008.

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 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 Act and the Small Schemes Module.

I further order that the meeting may consider any motion validly before it and the positions of secretary and treasurer shall be determined in accordance with section 12(4) of the Small Schemes Module.

I further order that for the purposes of determining the financial year, the end of the month preceding the month in which the meeting is held is deemed to be the end of the financial year.

The scheme
“Hayden Lodge” community titles scheme 34561 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 (Small Schemes Module).

Application
This application is by Anne Marie Garrigan, the owner of Lot 1 (Applicant) seeking appointment as administrator for the purposes of convening a general meeting to set up the Body Corporate.

The Applicant states that she purchased Lot 1 in May 2008 and that when obtaining pre-settlement searches, she was informed the Body Corporate records were not maintained as required under the Act. She says that the current owners of Lot 2 have owned the Lot for approximately 3 years and that in that time a meeting has not been held or records kept.

There are two lots included in the scheme. The Applicant included a letter dated 17 September 2008 signed by Ian and Pamela Grimes, the owner of Lot 2 agreeing to the Applicant convening a general meeting and stating that an order is required to commence the Body Corporate records.

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances 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 (s 276(1), 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).

Decision
The Body Corporate was created by the registration of SP 170962 in 2005. The original owner was required to hold a first annual general meeting in a way stated in section 38 of the Small Schemes Module. The Body Corporate is required to hold an annual general meeting every year within 3 months after the end of each financial year (s 31, Small Schemes Module). While it is not known whether the first annual general meeting was held, it is apparent that annual general meetings have not been held each year. 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; and reviewing insurance (all statutory motions).

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 a meeting otherwise 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.

In the circumstances, it is appropriate that an order be made in the terms sought. If an order is made appointing an administrator, the administrator has the powers given to the administrator under the order (s 301(2), Act). 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).

I have ordered that the meeting to be called and held by Ms Garrigan 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.

Owners should note that 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.

Number of Scheme:	34561
Name of Scheme:	Hayden Lodge
Address of Scheme:	1 Catamaran Court BANKSIA BEACH QLD 4507

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Hayden Lodge [2008] QBCCMCmr 359 (2 October 2008)