Sierra Court [2009] QBCCMCmr 286 (10 August 2009)

Number of Scheme:	13925
Name of Scheme:	Sierra Court
Address of Scheme:	9 Elizabeth Street TOOWONG QLD 4066

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Sierra Court

I hereby declare that an annual general meeting of the Body Corporate for Sierra Court held by 31 October 2009 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 Committee for the Body Corporate for Sierra Court is authorised to call and conduct an annual general meeting held by 31 October 2009, notwithstanding that the legislative timeframe for the meeting has expired.

Sierra Court community titles scheme 19469 (Sierra Court) consists of six lots and common property. The community management statement (CMS) for Sierra Court indicates that the Body Corporate and Community Management (Standard) Regulation 2008 (Standard Module) applies to the scheme.

Under the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Sierra Court (applicant) on 5 August 2009, pursuant to a resolution passed outside a committee meeting on 23 July 2009.

That the Body Corporate be allowed to hold the Annual General Meeting for "SIERRA COURT" CTS 13925 outside the 3 month period after their financial year end (31st May 2009). The meeting is proposed to be called sometime between September and October 2009.

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; or

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[2] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]

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 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.

The applicant advises that in this scheme the financial year end is 31 May. This means that the AGM must be held by 31 August each year. Although this timeframe has not yet expired, a lot owner has requested that the meeting be held in September to enable more lot owners to attend. I note that, given the current date, it would be difficult (although not impossible) to now prepare and distribute notices and give sufficient notice period to enable the AGM to be held by 31 August.

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.[4]

It would seem that at least four of the six lot owners support the application (including the three committee members approving the application and the owner who requested the delayed meeting. Although the delay is not desirable, in the circumstances I am satisfied that the order sought is appropriate.

It may be that this application arises from unusual circumstances, but I would encourage the Body Corporate to seek to avoid such delays in future. If August is regularly an inconvenient month the Body Corporate could give consideration to applying for a change of the financial year end date (pursuant to section 283 of the Act) so that AGMs can be held at a more convenient time.

I have made an order allowing the meeting to be held as late as October as requested. However I would encourage the meeting to be held in September if possible. No information has been given to indicate that this would not be achievable. I have also authorised the current Committee to call and convene the meeting.

[1] See sections 227, 228, 276 and Schedule 5 of the Act
[2] Section 276(2) of the Act
[3] Section 284(1) of the Act

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

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sierra Court [2009] QBCCMCmr 286 (10 August 2009)