Jansa Court [2009] QBCCMCmr 314 (25 August 2009)

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

I hereby order that Stephen McCulloch of Archers Body Corporate Management, 92A Abbott Street, CAIRNS QLD 4870, is appointed as Administrator to call, hold, and chair a general meeting (the meeting) of the Jansa Court Body Corporate in accordance with this order and within 3 months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting and deciding committee member positions. 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.

I further order that for the purposes of the Body Corporate and Community Management Act 1997 (the Act), the meeting shall be deemed to be an Annual General Meeting of the body corporate.

I further order that the Administrator shall issue a notice of the meeting in accordance with sections 70(1), (2) and (3) of the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module) and except as provided in this order, the meeting must be called and held in accordance with the Act and the Standard Module.

I further order 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 other than that reasonably necessary for the calling and

holding of the meeting, and expenses that must necessarily be met and are capable

of being authorised and incurred by a committee under the legislation.

“Jansa Court” was registered as a standard format plan of subdivision on 4 November 1992 comprising 15 lots and common property. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

This application is brought by the owner of lots 4, 6 and 8, Pauline Sue seeking the following orders:

The applicant states in her grounds that the first and second Annual General Meetings (AGMs) were held and all insurances required have been maintained to date. She states that as original proprietor, she has carried out all other duties of the body corporate to date. As most of the lots in the scheme have been sold and the community centre built, the Applicant wishes the body corporate to run correctly from now onwards.

A letter from Stephen McCulloch of Archers Body Corporate Management dated 13 July 2009 is attached to the application, indicating his willingness to accept an engagement as Administrator for the purposes of calling and convening an AGM, at a cost of $770.00, inclusive of GST.

In accordance with section 243 of the Act, a copy of the application was provided to the chairperson, for distribution to all owners (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application.

A proforma submission indicating that the signatory is agreeable to the orders sought was received from the owners of lots 1, 2, 3, 5, 13, 14 and 15. The owners of lot 7 agreed to the orders sought being made on the condition that the current body corporate fulfils its obligations; a list of outstanding work was attached to the submission.

The owners of lots 10 and 12 completed proforma submissions and also made individual specific submission. They agree that an Administrator should be appointed to conduct an AGM to allow the body corporate to operate correctly in accordance with the legislation but do not agree that the statutory requirements for the calling of the AGM should be waived. The owner of lot 10 further states that this will be the first AGM available for any one of ten owners to have an opportunity to submit a motion. They hope the Administrator addresses the situation of having no funds in either the administrative or sinking fund. The owner of lot 9 opposed the appointment of a paid administrator at this stage. He considers that a general meeting should be convened to examine the minutes of meetings since May 2004.

This is a dispute which falls within the dispute resolution provisions of the Act.[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) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

It is apparent that the body corporate is failing to function in accordance with the legislation, particularly in relation to its financial administration and the calling and holding of meetings. In the circumstances, I am satisfied that the appointment of an Administrator is necessary to authorise a person to call and hold a general meeting of the scheme, and allow it to thereafter proceed on a proper legal basis.

I note that the majority of owners agree to the appointment of an Administrator. However, I am not persuaded to waive any of the statutory requirements for the calling or holding of the meeting. The Applicant provided no grounds for this and there is no legislative justification for it. In fact, the submissions make it clear that owners have issues which they want considered at the meeting. It is important for owners to retain their statutory rights to nominate for committee membership and to submit motions for consideration at the meeting.

The costs of the administrator are to be shared amongst the owners of lots in accordance with the contribution schedule lot entitlements for the scheme.

Number of Scheme:	30774
Name of Scheme:	Jansa Court
Address of Scheme:	Queensland

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Jansa Court [2009] QBCCMCmr 314 (25 August 2009)