Brookfield Estate [2009] QBCCMCmr 298 (14 August 2009)

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

I hereby declare that an annual general meeting of the Body Corporate for Brookfield Estate held within two months 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 Estate is authorised to call and conduct the annual general meeting for 2009, notwithstanding that the legislative timeframe for the meeting has expired.

I further order that the Committee for the Body Corporate for Brookfield Estate shall provide a copy of this order and the statement of reasons to all owners with the notice of meeting for the 2009 annual general meeting.

Brookfield Estate community titles scheme 23353 (Brookfield Estate) consists of 81 lots and common property. The community management statement (CMS) for Brookfield Estate indicates that the Body Corporate and Community Management (Accommodation) Regulation 2008 (Accommodation 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 Estate (applicant) on 3 August 2009, pursuant to a resolution passed outside a committee meeting on 28 July 2009.

We are seeking an extension of time for the convening of the 2009 Annual General Meeting for Brookfield Estate CTS 23353.

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 64 of the Accommodation 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.

The end of the financial year for the scheme is 31 March, and so that the AGM must be held by 30 June each year.

In this instance the application advises that the timeframe for the AGM had been exceeded because of an administrative error within the office of the body corporate manager. Accordingly, they seek an extension of two months to call and conduct the meeting.

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]

I am concerned that, with the end of financial year having occurred in March, there has been a considerable delay in planning the AGM and that the issue was apparently not identified until after the timeframe had already expired. I also concerned that this may not be an unusual occurrence as it appears the 2008 AGM was not held until October. I would encourage all those involved with this scheme to have greater regard to the legislative timeframes in 2010.

Notwithstanding these concerns, the 2009 AGM cannot now be held within the legislative timeframe. If the Committee were to call the AGM now, the convening and conduct of the AGM could be invalid in the absence of the authorisation of an adjudicator. This would leave in doubt the legal status of the Body Corporate, as well as the validity of any decisions purportedly passed by any AGM. This would clearly not be in the interests of owners.

In the circumstances 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. Having regard to the 21-day notice requirements in section 32 of the Accommodation Module, the AGM could be held within as little as a month of the date of this order. I will allow the Committee two months to call and convene the AGM but would encourage them to do so earlier if that is practical.

To avoid any doubt, I have also authorised the current Committee to call and convene the meeting. In addition I have required that a copy of this order and statement of reasons be provided to all owners so they are fully aware of the circumstances.

[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).

Number of Scheme:	23353
Name of Scheme:	Brookfield Estate
Address of Scheme:	11 Rebecca Way SLACKS CREEK QLD 4127

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Brookfield Estate [2009] QBCCMCmr 298 (14 August 2009)