Le Grand At MacGregor [2009] QBCCMCmr 169 (29 April 2009)

Last Updated: 7 May 2009

REFERENCE: 0298-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	39311
Name of Scheme:	Le Grand At Macgregor
Address of Scheme:	14 le Grand Street MACGREGOR QLD 4109

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

Fortune Place Investments Pty Ltd, the Owner of all the 40 lots in the scheme

I hereby order that for the purposes of the Body Corporate and Community Management Act 1997 (the Act) and pursuant to section 283 of that Act, the date of 31st March 2010 shall be deemed to be the first financial year end date of the body corporate for Le Grand At Macgregor CTS 39311, in place of the financial year end date of 31st October 2009. I further order that for the purposes of the Act, the first financial year for the body corporate for Le Grand At Macgregor CTS 39311, shall be deemed to have commenced on 1st April 2009 and that subsequent financial years shall commence on 1st April and terminate on the last day of March.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0298-2009

“Le Grand At Macgregor” CTS 39311

APPLICATION

This is an application dated 26th March 2009 by Fortune Place Investments Pty Ltd, the owner of all 40 lots in the scheme for Le Grand At Macgregor CTS 39311 (the Applicant) for declaratory orders that the financial year end for the scheme be changed to 31st March; and that the commencement date for the administrative fund and sinking fund levies commences on 1st April 2009 despite the fact that the scheme was registered on 21st November 2008.

JURISDICTION

“Le Grand At Macgregor” Community Titles Scheme 39311 is governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008. There are 40 lots in the scheme.

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 the exercise of rights or powers, or the performance of duties, under the Act. An adjudicator's order may contain ancillary and consequential provisions which the adjudicator considers necessary or appropriate (section 284(1)).

Section 283 of the Act provides that, with the consent of the body corporate, the order of the adjudicator may include a change to the body corporate’s financial year and to the dates when
later financial years begin.

SUBMISSION

The Applicant submitted that the Brisbane City Council had not at the time of this application issued the Classification/Certificate of Occupancy for the scheme which was registered in November 2008, and that none of the lots were occupied. The Applicant feels it appropriate in the circumstances to adopt a financial year which ends on 31st March; and that the administrative and sinking fund levies do not commence until 1st April.

DETERMINATION

In this matter I sought further information from the Applicant, since an application to change the financial year of a scheme can only be made with the consent of the body corporate. Whilst the Applicant is the sole owner of all lots, currently unoccupied, in the scheme, it requires the authorisation of the body corporate to make this application. The Applicant subsequently on 15th April 2009 held an extraordinary general meeting (EGM) of the body corporate. The sole person present was Ling Zhang who is a director of the Applicant.

The Applicant has now provided minutes of the EGM showing that the body corporate has resolved that the financial year commence on 1st April until 31st March; and that the administrative and sinking fund budgets have been approved for a period 1st April 2009 to 31st March 2010. I also note that a Certificate of Classification dated 3rd April 2009 is now available.

The financial year for a community titles scheme registered after 1997, as given in Schedule 6 Act (Dictionary), ends on the last day of the month immediately before the month when the community titles scheme was established. The financial year for this scheme for the purposes of the Act, therefore runs 1st November to 31st October.

I am satisfied that the body corporate has consented to the proposed change in the date of the scheme’s financial year running 1st April to 31st March.

Section 283 Act couches the order which can be made in the terms of the commencement of future financial years. Thus future financial years will commence on 1st April.

Administrative fund and sinking fund contributions for the body corporate’s first financial year must be established at the first annual general meeting of the scheme. (Section 75(3)(a) Accommodation Module.) Nevertheless, a scheme may hold an extraordinary general meeting before its first annual general meeting[1] , as is the case in this scheme.

I do not entirely understand the Applicant’s request for a declaratory order concerning the commencement date for contributions to the administrative and sinking funds. Now that the EGM has been held, the contributions for 1st April 2009 – 31st March 2010 have been set by the body corporate. There is no requirement to set contributions until the first annual general meeting which is yet to be held. Since I am willing to make a declaratory order that for the purposes of the Act, the first financial year of the scheme is deemed to be 1st April 2009 to 31st March 2010, it follows that contributions to the administrative and sinking funds need not be established prior to 1st April 2009.

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[1] Section 65(4) Accommodation Module