Zillmere Gardens [2008] QBCCMCmr 367 (9 October 2008)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Elwyn Garrigan, the Owner of Lot 1

I hereby order that -

(1) Beverley Jean Campbell of Australasian Body Corporate Management (Qld) Pty Ltd (PO Box 277, Chermside South Qld 4032 is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of the Body Corporate for Zillmere Gardens 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 the meeting shall be deemed to be the annual general meeting of the scheme for 2008 and, unless otherwise provided for in this order, shall be called and held in accordance with the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the ‘Standard Module’).

I further order that –

(1) 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.

(2) The administrator must give at least twenty-one (21) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting and nominations for committee membership.
(3) The purpose of the meeting shall be the consideration of motions included on the agenda, including those motions required by section 76(3) of the Standard Module any other motion validly submitted, and the election of a Committee.

I further order that the administrator’s fees and outgoings for this appointment are to be paid by the Body Corporate for Zillmere Gardens.

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

Zillmere Gardens community titles scheme 1925 (Zillmere Gardens) consists of seven lots and common property. The community management statement (CMS) for Zillmere Gardens indicates that 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 13754.

This application was made by Elwyn Garrigan, Owner of Lot 1 (applicant) on 26 August 2008 under the Body Corporate and Community Management Act 1997 (Act). The applicant sought an order against the Body Corporate for Zillmere Gardens (respondent) in the following terms:

Seeking the appointment of an Administrator to arrange/conduct our first meeting. Also prepare/distribute agenda/resolution/motion papers to be discussed at meeting. Arrange (in liaison with owners) date/time of meeting. Conduct meeting also prepare/distribute minutes etc. (As advised to you with the appln papers, Aust. Body Corp. Management, Aspley are agreeable to be appointed as Administrator than Manager).

The application includes the signed consent to an administrator from six of the seven lot owners. A copy of the application was provided to the Owner of Lot 4 with an invitation to respond to the application. This owner made a submission also consenting to the application. A dispute resolution recommendation was made referring the matter to departmental adjudication.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2]

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.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4] 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[5] 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.[6]

An administrator appointed by an adjudicator has the powers given to the administrator under the order.[7] Section 301(4) of the Act provides that the order may:

The Body Corporate for Zillmere Gardens was automatically created when the scheme was registered in April 1994. The applicant says there is currently no properly constituted committee, with the last meeting held in March 1996.

Section 66 of the Standard Module provides that an annual general meeting (AGM) must be called and held within three months after the end of a scheme’s financial year. In the absence of an AGM for over twelve, the Body Corporate is not currently operating on a proper legal footing. As there is no validly elected committee at present, there is nobody currently authorised to call an AGM. Accordingly the appointment of an administrator is necessary to restart the Body Corporate.

All owners have consented to the appointment of Beverley Campbell of Australasian Body Corporate Management (Qld) Pty Ltd (ABCM) for this purpose. I am satisfied that this appointment is appropriate. ABCM have quoted a fee of $350 (plus disbursements) to undertake the role, and this fee will be payable by the Body Corporate.

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 Zillmere Gardens on a proper legal basis. To facilitate the management of the scheme’s financial affairs, I have included an order setting the financial year for the scheme relative to the AGM.

The applicant also seeks the ongoing appointment of ABCM as a body corporate manager (BCM) for the scheme. All owners have agreed to consider this appointment if a motion is placed on the general meeting agenda. No order is necessary in this regard. The applicant or any other owner can submit a motion to the administrator meeting for the appointment of ABCM or any other person or company for appointment as a BCM for the scheme. Owners should have regard to the requirements set out in sections 112 to 121 of the Standard Module regarding the engagement of a BCM. If alternative BCMs are proposed at the meeting, a motion with alternative will be rquired pursuant to section 72 of the Standard Module. Purusant to section 152 of the Standard Module, if the total cost of the engagement of a BCM will be more than the major spending limit for the scheme (which is currently $10,000) a minimum of two quotes will be required to be considered. If any owner would like any more information on these or any other requirements in the body corporate legislation they can contact the Ifnormation Service provided by the Office of the Commissioner for Body Corporate and Community Management on 1800 060 119.

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

Number of Scheme:	1925
Name of Scheme:	Zillmere Gardens
Address of Scheme:	402 Zillmere Road ZILLMERE QLD 4034

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Zillmere Gardens [2008] QBCCMCmr 367 (9 October 2008)