Heritage Village Ormiston West [2009] QBCCMCmr 276 (3 August 2009)

Last Updated: 17 September 2009

REFERENCE: 0710-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19720
Name of Scheme:	Heritage Village Ormiston West
Address of Scheme:	88 Freeth Street WEST ORMISTON QLD 4160

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Heritage Village Ormiston West community titles scheme 19720

I hereby declare that an annual general meeting of the body corporate for Heritage Village Ormiston West community titles scheme 19720 called and held by 31 August 2009 will not be invalid simply because it is held more than three months after the end of the scheme’s financial year.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0710-2009

“Heritage Village Ormiston West” CTS 19720

The scheme
“Heritage Village Ormiston West” community titles scheme 19720 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application is by the Body Corporate seeking a declaratory order to hold the annual general meeting on 4 August 2009 so that proceedings, decisions and ballots at the meeting are not deemed at a later date to be invalid on the grounds that the meeting was held outside the legislated period. The Body Corporate state the end of the financial year is 31 March.

The Body Corporate submits that the committee had repeatedly asked the body corporate manager to make preparations for the 2009 annual general meeting. It states the budget meeting was held on 23 June 2009, but the manager resigned before the notice of meeting was reviewed by the committee. The Body Corporate says the committee has engaged a person to complete preparations and to distribute the notice of meeting to owners.

The Body Corporate provided a copy of Minutes of voting outside committee meeting dated 3 July 2009 indicating that 5 committee members voted “that the body corporate make an application to the Commissioner for Body Corporate and Community Management for an extension of the period prescribed under section 66 of the Body Corporate and Community Management (Standard Module) Regulation 2008.”

Jurisdiction
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 exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act).

Determination
A body corporate must hold and conduct meetings as prescribed under the regulation module applying to the scheme, which in this case is the Standard Module (s 104, Act). An annual general meeting must be held within 3 months after the end of each of the scheme’s financial years (s 66, Standard Module). An annual general meeting is integral to the management of a body corporate as consideration is 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; reviewing insurance; and electing a committee.

The Body Corporate has stated that the financial year end was 31 March 2009 and that the annual general meeting was not held by 30 June 2009. The Body Corporate has explained the reasons for not holding the annual general meeting by the end of June. I have no reason to believe the committee has not acted in good faith in this matter. As the timeframe for holding the annual general meeting has expired, the convening and conduct of the meeting could be invalidated in the absence of this declaration. 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, I consider it is appropriate to declare that an annual general meeting will not be invalid simply because it is held more than three months after the end of the scheme’s financial year if it is held by 31 August 2009. I have noted that the meeting is scheduled to be held on 4 August 2009. I have provided additional time to accommodate any unforeseen circumstance such as for example, an adjournment.