Deighton Court [2008] QBCCMCmr 477 (24 December 2008)

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

I hereby order that Mr. Trevor Matthews of Matthews Body Corporate Management is appointed as Administrator to call, hold, and chair an annual general meeting (AGM) of the Deighton Court Body Corporate within 3 months from the date of this order. 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.

I further order that for the purposes of calling and chairing the meeting, the Administrator shall have all the powers of 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; 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 legislation.

I further order that this AGM shall be deemed to be the first AGM for the scheme and for the purposes of determining the future financial years of the Body Corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.

I further order that Mr. Gary Taylor and Body Corporates Australia Pty. Ltd. are to forward all books and records of the Body Corporate to Mr. Trevor Matthews of Matthews Body Corporate Management, 678 Ipswich Road, Annerley, Brisbane, within 14 days of the date of this order.

Deighton Court community titles scheme consists of 4 lots and common property. The community management statement (CMS) indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the owner of lot 1 seeking the following orders:

That a time frame be set for calling a general meeting to be deemed the first annual general meeting for Deighton Court so that future records of the body corporate can be properly kept in accordance with the Body Corporate and Community Management Act.

That the former body corporate manager for the scheme, Gary Taylor of Body Corporates Australia Pty. Ltd. who is in possession of the books and records of the body corporate, be required to hand over all books and records to Mr. Trevor Matthews of Matthews Body Corporate Management, 678 Ipswich Road, Annerley 4103.

The applicant is seeking to have a new body corporate manager appointed to bring the affairs of the scheme up to date and in compliance with the Body Corporate and Community Management Act 1997. The applicant is also seeking to have the former body corporate manager forward all records to Mr. Trevor Matthews of Matthews Body Corporate Management, 678 Ipswich Road, Annerley who has agreed to convene an AGM at no cost to the body corporate. It is proposed that Matthews Body Corporate Management will be appointed as body corporate manager and will thereafter attend to the affairs of the body corporate.

The applicant advises that the records and accounts of this scheme have fallen into disarray through the illness of the former body corporate manager, and as no owners are in a position to take over responsibility for management, the services of Matthews Body Corporate Management have been sought.

It would appear that the applicant is the only lot owner who is actively taking an interest in ensuring that the body corporate meets its statutory obligations.

Attached to the application is a letter from Mr. Matthews of Matthews Body Corporate Management, offering to convene the AGM at no cost to the body corporate and to act in the position of body corporate manager thereafter.

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:

(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 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)).

The failure of the former body corporate manager to ensure that the body corporate complies with its statutory obligations is an obvious cause for concern. Further, the retention of body corporate records by the former body corporate manager is preventing the body corporate from engaging another body corporate manager to perform the required tasks.

Where a body corporate fails to regularly hold its required annual general meetings and otherwise fails to meet its statutory obligations, it is often necessary for an adjudicator to make an order appointing an administrator to call and hold an annual general meeting of the body corporate. The purpose of such an order is to establish the body corporate on a proper legal footing, and to facilitate the body corporate conducting its affairs in accordance with the legislation, including, by maintaining required records.

Section 301 of the Act, headed Appointment of Administrator provides –

301 Appointment of administrator
(1) This section applies if an order is made under this chapter appointing an administrator.
(2) The administrator has the powers given to the administrator under the order.
(3) Without limiting subsection (2), the power may include power to levy a special contribution against the owners of lots included in a community titles scheme to meet the cost of complying with obligations to which the order relates and the costs of the administration.
(4) The order may—
(a) withdraw all or particular stated powers from the body corporate, a body corporate manager to whom a power has been given under section 119 or 120, or stated officers of the body corporate
until the administrator has taken the necessary action to secure compliance with the obligations; and
(b) require officers of the body corporate or a body corporate manager mentioned in paragraph (a) to take stated action to help perform the work the administrator is required to perform; and
(c) fix the administrator’s remuneration.
(5) The administrator’s remuneration is to be paid out of the funds of the body corporate.
(6) This section does not apply to the enforcement of a monetary obligation of the body corporate arising under another Act unless it is an enforceable money order.

In the circumstances, I am satisfied that it is reasonable and necessary for me to make an order appointing Mr. Trevor Matthews of Matthews Body Corporate Management as Administrator to call, hold, and chair an annual general meeting of the Yeronga Place Mews Body Corporate.

Further, pursuant to sections 206 and 207 of the Standard Module, Mr. Taylor and Body Corporates Australia Pty. Ltd. are obliged to return the Body Corporate’s assets, books and records to the body corporate.

(a) a person has possession or control of any of the following property (the specified property)—

(b) the person took possession or control of the specified property in the person’s capacity, or purportedly in the person’s capacity, as—

(i) a member, or an associate of a member, of the body corporate or of the committee; or

(ii) a body corporate manager or service contractor, or an associate of a body corporate manager or service contractor; and

(c) the person is served with a prescribed notice requiring the person to give, within 14 days after the person is served with the notice, the specified property to—

(ii) if a body corporate manager is acting under a part 3, division 10 engagement—a member of the body corporate who is named in the notice.

(3) The person may not claim a lien on specified property mentioned in subsection (1)(a)(ii) or (iii).

(b) if a body corporate manager is acting under a part 3, division 10 engagement—a notice signed by or for the owners of at least one-half of the lots included in the scheme.

(a) a person (the person) engaged as a body corporate manager for a community titles scheme has custody of a document of the body corporate; and

(b) the person holds the document in photographic or electronic image form; and

(c) the person’s engagement as body corporate manager expires and is not renewed, or is otherwise brought to an end.

(a) to give to the body corporate the document in the form of a disc, tape or other article or any material from which writings or messages are capable of being produced or reproduced (with or without the aid of another article or device), if the form is immediately accessible by the body corporate; or

(3) The person must, at the person’s own expense, comply with a requirement of the body corporate under subsection (2).

The failure of the respondent or his company to adequately communicate with the body corporate committee has compounded the difficulties faced by the body corporate. In the circumstances it is appropriate that I make an order requiring Gary Taylor and Body Corporates Australia Pty. Ltd. to return of all records and any other property that belongs to the Body Corporate Mr. Trevor Matthews of Matthews Body Corporate Management) within 14 days.

Number of Scheme:	3541
Name of Scheme:	Deighton Court
Address of Scheme:	5 Deighton Road DUTTON PARK QLD 4102

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Deighton Court [2008] QBCCMCmr 477 (24 December 2008)