Silver Sea Resort and Spa [2009] QBCCMCmr 339 (4 September 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Seasilver Hotels Pty Ltd (Receivers and Managers Appointed), owner of some 241 lots

I hereby order that -

(1) Barry Tevelan of Ernst Body Corporate Management Pty Ltd (PO Box 10374, Southport Qld 4215) is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Silver Sea Resorts and Spa within two (2) 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 purposes of the Body Corporate and Community Management Act 1997 (‘the Act’), the meeting shall be deemed to be the First Annual General Meeting of the Body Corporate.

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 called and held in accordance with the Act and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the ‘Accommodation Module’), and that the agenda for the meeting must include the items stated in section 75(3) of the Accommodation Module and any other motion properly submitted.

I further order that for the purposes of determining the future financial year of the Body Corporate for Silver Sea Resorts and Spa, 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.

Silver Sea Resort and Spa community titles scheme (Silver Sea) consists of 310 lots and common property. The scheme’s community management statement indicates the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module) applies to the scheme.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Seasilver Hotels Pty Ltd (Receivers and Managers Appointed) (applicant) on 3 September 2009. The applicant is the original owner and still owns approximately 241 lots in the scheme. The applicant is seeking a declaratory order in the following terms:

An order that Barry Tevelen of Ernst Body Corporate Management Pty Ltd is appointed to call, hold and chair the first annual general meeting of Sea Silver Resort and Spa Community Titles Scheme 35480 within one month of the date of this order.

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 community management statement, or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement.

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 community management statement 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:

Section 75 of the Accommodation Module provides that the original owner must call and hold the first annual general meeting (AGM) of a body corporate within two months after the first of the following:

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.
The agenda for the meeting must include the items set out in section 75(3) of the Standard Module.

Silver Sea was established when it was registered in about October 2006. Although the original owner still owns more than 50% of the lots in the scheme, and in fact retains ownership almost 78% of lots. However, significantly more than 6 months have elapsed after the establishment of the scheme. As such, the first AGM should have been held by mid 2007. However it is apparent that no first AGM has been held.

In March 2009 Ernst & Young were appointed as receivers and managers of certain property of the applicant company. The application indicates that difficulties are being experienced in the administration of the Body Corporate because the first AGM has not been held.

If the original owner does not call and hold the first AGM as required by the section, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first AGM within a stated time (section 75(4) of the Accommodation Module). The purpose of such an order is to re-establish the body corporate and to facilitate the Body Corporate conducting its affairs in accordance with the legislation.

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 put the Body Corporate for Sea Silver on a proper legal basis.

The applicant has nominated Barry Tevelen of Ernst Body Corporate Management Pty Ltd as administrator, and I am satisfied that his appointment would be appropriate for this purpose.

The application requests the AGM be held within one month of the date of this order. It is certainly desirable that the meeting be held as soon as possible. However, given the legislative notice periods for a general meeting, one month may be difficult to achieve. Accordingly I have made an order providing a period of two months for the AGM to be held. I have also made an order determining the financial year end for the scheme.

[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:	35480
Name of Scheme:	Silver Sea Resort and Spa
Address of Scheme:	QUEENSLAND

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Silver Sea Resort and Spa [2009] QBCCMCmr 339 (4 September 2009)