The Pavilion on Parker [2009] QBCCMCmr 299 (14 August 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

I hereby order that the application for an order

I hereby order that -

(1) Nadine Wismayer (6/28 Parker Street, Labrador Qld 4215) is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for The Pavilion on Parker within three (3) months of the date of this order.
(2) The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered.

I further order that for the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of the 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; or
- to incur any expenditure apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

I further order that the meeting shall be deemed to be the first annual general meeting of the scheme and, unless otherwise provided for in this order, shall be called and held in accordance with the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008, particularly section 77.

I further order that for the purposes of determining the future financial year of the Body Corporate for The Pavilion on Parker, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.

The Pavilion on Parker community titles scheme (The Pavilion on Parker) consists of 6 lots and common property. The scheme’s community management statement (CMS) indicates the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme.

This application was made by Jeffery Hackett, Owner of Lot 1 (applicant) on 4 August 2009 under the Body Corporate and Community Management Act 1997 (Act). The applicant sought a declaratory order in the following terms:

That an administrator be appointed to call and conduct a 1st AGM for Pavilion on Parker and the election of a committee.

The applicant has provided a written consent to the orders sought from owners or representatives of the owners of each of the other lots in the scheme.

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 a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers, or the performance of duties, under the Act or the CMS.

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]

Specifically, and without limiting the power to make an order under section 276(1), an adjudicator may order the body corporate to call a general meeting of its members to deal with stated business or to change the date of an annual general meeting[4] or alternatively, the adjudicator may order the appointment of an administrator, and authorise the administrator to perform obligations of the body corporate, its committee, or a member of its committee under this Act or the CMS or the obligations of the body corporate under another Act.[5]

An administrator appointed by an adjudicator has the powers given to the administrator under the order.[6] Section 301(4) of the Act provides that the order may:

It appears that The Pavilion on Parker was established in September 2008 but that while an extraordinary general meeting was held in December 2008, no annual general meeting (AGM) has yet been held.

Purusant to section 77 of the Standard Module, the original owner must call and hold the first annual general meeting within two months of either 50% of lots no longer being owned by the original owner, or six months having elapsed from the establishment of the scheme. As no lots are now owned by the original owner and more nearly 12 months have elapsed since the establishment of the scheme, it is apparent that there has been a failure to comply with section 77.

As there has been no AGM, there is no validly elected committee at present and so there is nobody currently authorised to call an AGM. Accordingly the appointment of an administrator is necessary to put the Body Corporate on a proper legal footing. All owners have consented to the appointment of Nadine Wismayer for this purpose.

In the circumstances, I am satisfied that an order should be made for the appointment of an administrator to call and hold a general meeting in order to enable the Body Corporate for annual general meeting (AGM) to commence operating properly.

To facilitate the management of the scheme’s financial affairs, I have included an order setting the financial year for the scheme relative to the AGM.

I would alert owners to the services provided by the Information Service of the Commissioner’s Office to assist them in understanding their rights and responsibilities under the body corporate legislation. The Information Service can be contacted on freecall 1800 060 119 and the website (www.justice.qld.gov.au/bccm) have a range of factsheets, forms and on-line training which may be of interest to all owners.

[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] See Item 6 of Schedule 5 to the Act
[5] See Item 23 of Schedule 5 to the Act
[6] See section 301(2) of the Act

Number of Scheme:	38996
Name of Scheme:	The Pavilion on Parker
Address of Scheme:	28 Parker Street LABRADOR QLD 4215

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Pavilion on Parker [2009] QBCCMCmr 299 (14 August 2009)