Picton [2009] QBCCMCmr 297 (14 August 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Craig and Leanne Morton, the owner of Lot 1; Donna Martin, the owner of Lot 2; and Knud Melchiorsen and Wen Huang, the owner of Lot 4

I hereby order that Anne Chambers of Strata Vision Group Pty Ltd is appointed as administrator to call, hold and chair a general meeting (the meeting) of the body corporate for Picton community titles scheme 8525 in accordance with this order and within 3 months of the date of this order.

I further order that 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 and 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 Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

I further order that within 14 days of the date of this order, the administrator shall serve a notice on each lot owner in accordance with section 16(2) of the Standard Module inviting each lot owner to give to the administrator by the time stated in the notice:

A written nomination of an eligible individual that complies with section 18 of the Standard Module; and
Motions for inclusion on the agenda of the meeting.

I further order that the administrator must allow at least 14 days for each lot owner to submit a nomination and motions, and that after the time allowed has expired the administrator must, except as provided in this order, call and hold the meeting in accordance with the Act and the Standard Module.

I further order that the meeting shall be deemed to be an annual general meeting of the Body Corporate and that the agenda for the meeting include the matters stated in section 76(3) of the Standard Module and any other motion validly submitted.

The scheme
“Picton” community titles scheme 8525 consists of 5 lots and is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

Application
This application made on 8 July 2009 by the owners of Lots 1, 2 and 4 (Applicants) against the Body Corporate seeks an outcome that Strata Vision Group Pty Ltd (Strata Vision) be appointed as administrator to convene an annual general meeting for the financial year ending 31 July 2009.

In making the application, the Applicants submit all the business on the agenda of the Annual General Meeting dated 23 October 2008 was not transacted and minutes of the meeting have not been drafted. They say no levies have been issued and no financial records have been maintained since the date of the meeting. The Applicants want an administrator appointed to assist the Body Corporate call and hold an annual general meeting for this year.

The Applicants provided a copy of a proposed Administration Agreement between the Body Corporate and Strata Vision.

On 30 July 2009, Tracey Ralph, the owner of Lot 3 consented to the appointment of Strata Vision.

Jurisdiction
Section 276(1) of the Act provides that an adjudicator may make an 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. An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

Investigation
An adjudicator may require a party to the application who may be able to help resolve the issues raised by the application to give information to the adjudicator (s 271(1), Act).

For the reason the abovementioned proposed Administration Agreement seemed to relate to the engagement of Strata Vision as body corporate manager, I requested Strata Vision provide consent limited to being appointed to convening an annual general meeting. On 29 July 2009, Anne Chambers of Strata Vision confirmed her willingness to being appointed as administrator.

On 30 July 2009, I provided a copy of the application to the committee and to Anne Waldby, the owner of Lot 5, with an invitation to respond to the matters raised in the application. On 31 July, Anne Waldby consented to the appointment of Strata Vision.

Determination
In making the application, the Applicants stated that a general meeting has not been held this year. The Applicants request authority to now hold an annual general meeting.

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 Applicants submit that the end of financial year is 31 July. It is apparent business from the Annual General Meeting dated 23 October 2008 was not completed and that the Body Corporate has not been properly administered since this meeting. It is also evident that the nominations for the election of the committee have not been invited in accordance with section 16 of the Standard Module; at least 3 weeks before, but not earlier than 6 weeks before the end of the financial year. All owners agree to the proposition that Strata Vision be appointed to call and hold the annual general meeting that must be held by 31 October 2009. If an order is not made authorising a person to be appointed as administrator to call and hold an annual general meeting, the convening and conduct of the meeting by the Body Corporate could be invalidated. 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, it is appropriate to order that an administrator be appointed in the terms sought. I am satisfied that owners have agreed to the nomination of Strata Vision as administrator. If an adjudicator appoints an administrator to perform obligations of the body corporate, the committee or a member of the committee, anything done by the administrator under the authority given under the order is taken to be done by the body corporate, committee or committee member (s 278, Act). If an order is made appointing an administrator, the administrator has the powers given to the administrator under the order (s 301(2), Act).

Number of Scheme:	8525
Name of Scheme:	Picton
Address of Scheme:	120 Whitmore Street TARINGA QLD 4068

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Picton [2009] QBCCMCmr 297 (14 August 2009)