Brookfield Lodge [2009] QBCCMCmr 293 (11 August 2009)

Number of Scheme:	19661
Name of Scheme:	Brookfield Lodge
Address of Scheme:	42 Upper Brookfield Road BROOKFIELD QLD 4069

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

I hereby declare that an annual general meeting of the Body Corporate for Brookfield Lodge held within one month of the date of this order 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 Brookfield Lodge is authorised to call and conduct the annual general meeting for 2009, notwithstanding that the legislative timeframe for the meeting has expired.

Brookfield Lodge community titles scheme 19661 (Brookfield Lodge) consists of 12 lots and common property. The community management statement (CMS) for Brookfield Lodge 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 Brookfield (applicant) on 5 August 2009, pursuant to a resolution passed outside a committee meeting on 27 July 2009.

That the Body Corporate for Brookfield Lodge CTS 19661, be granted permission to hold the 2009 Annual General Meeting late, before 31 August 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 years. 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.

Although not clearly stated in the application, it would appear that the end of the financial year for the scheme is 30 April, and so that the AGM must be held by 31 July each year.

In this instance the body corporate manager issued notice of the AGM on 27 June 2009 for a meeting scheduled to be held on 22 July 2009. On 16 July 2009 it was discovered that over half of the owners had not received the AGM notice. By that time it was not possible to reissue the notice and give owners the required 21 days notice of the AGM.

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]

In this case there seems to be a genuinely unintentional issue with the issuing of notices. I am satisfied that it is appropriate for an order to be made that the AGM will not be invalid if it is held within the timeframe specified in this order. Although the application has sought an order allowing the meeting to be held by 31 August 2009, that will be difficult to now achieve. Accordingly I have made an order allowing the meeting to be held within one month of this order which allows a little more leeway.

[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

Brookfield Lodge [2009] QBCCMCmr 293 (11 August 2009)