Seaspray [2008] QBCCMCmr 40 (5 February 2008)

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

I hereby declare that the Committee for the Body Corporate for Seaspray is authorised to call and conduct the annual general meeting for 2008, notwithstanding that legislative timeframe for the meeting has expired.

I further declare that an annual general meeting of the Body Corporate for Seaspray held by 18 February 2008 will not be invalid simply because it is held more than three months after the end of the financial year of the Body Corporate.

I further order that the body corporate manager shall provide a copy of this order and the statement of reasons to all owners prior to the annual general meeting.

Seaspray community titles scheme (Seaspray) consists of six lots and common property. The community management statement (CMS) for Seaspray indicates that the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (Small Schemes Module) applies to the scheme.

Under the Body Corporate and Community Management Act 1997 (Act), this application was made by Bruce Langstreth, co-owner of Lot 6 (applicant) on 1 February 2008. It appears that the application was lodged on behalf of the Body Corporate Committee for Oceanside Cove, pursuant to a resolution passed on 29 January 2008.

That the Annual General Meeting of Seaspray be held on Monday 18th February 2008

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) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 37 of the Small Schemes Module provides that an annual general meeting (AGM) must be called and held within 3 months after the end of each of the scheme’s financial year. Time limits are placed on the period within which an AGM is required to be held for a number of reasons, including accountability and accessibility to information regarding the operation of the scheme.

In this scheme it is apparent that the financial year end is 31 October and so the AGM must be held by 31 January each year.

The application indicates that the AGM was scheduled for 18 January 2008. However, as a result of an error it seems that the meeting notice was not sent out. The Committee now seek to reschedule the meeting for 18 February 2008.

Obviously it is preferable that an AGM be held within the prescribed timeframe, and a body corporate should make every effort to ensure that this timeframe is complied with. However, the courts have recognised that the very detailed provisions of the regulations make it almost inevitable that from time to time there will be non-compliance with the legislation. In particular the courts have commented that non-compliance of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken in good faith.^[2]

As the timeframe for the AGM to be held has expired, the convening and conduct of the AGM could be invalid in the absence of the authorisation of an adjudicator. This would leave the legal status of the Body Corporate in doubt, as well as the validity of any decisions purportedly passed by the AGM if it were not otherwise authorised. This would clearly not be in the interests of owners. Moreover I do not consider that any owner will be disadvantaged by the making of the orders sought. The meeting will only be 18 days out of time and it is apparent from the application that the Body Corporate will not have to meet the costs associated with the error.

I have no reason to believe that the Committee has not acted in good faith in this matter. Accordingly, in the circumstances I consider that it is appropriate for an order to be made that the AGM will not be invalid if it is held by 18 February 2008. In addition I have required that a copy of this order and statement of reasons be provided to all owners so they are fully aware of the circumstances.

^[2] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (Unreported).

Number of Scheme:	16896
Name of Scheme:	Seaspray
Address of Scheme:	75 Sims Esplanade Yorkeys Knob QLD 4878

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Seaspray [2008] QBCCMCmr 40 (5 February 2008)