One One Three [2009] QBCCMCmr 344 (10 September 2009)

Number of Scheme:	7758
Name of Scheme:	One One Three
Address of Scheme:	113 Wickham Terrace SPRING HILL QLD 4000

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

I hereby declare that an annual general meeting of the Body Corporate for One One Three held by 31 October 2009 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 One One Three is authorised to call and conduct the annual general meeting for 2009, notwithstanding that the legislative timeframe for the meeting has expired.

One One Three community titles scheme 7758 (One One Three) consists of 19 lots and common property. The community management statement (CMS) for One One Three indicates that the Body Corporate and Community Management (Standard) Regulation 2008 (Standard Module) applies to the scheme.

This application was lodged under the Body Corporate and Community Management Act 1997 (Act) on 9 September 2009. The application was lodged by body corporate manager for the scheme, however as the application was authorised by a committee resolution on 24 August 2009 and is clearly seeking an declaratory order for the Body Corporate for One One Three, rather than relating to dispute between the body corporate manager and the Body Corporate, I have treated the application and being by the Body Corporate. In the circumstances it was not necessary to delay the matter to pursue an amendment to this affect.

That the annual general meeting be held late, between 1 October 2009 and 31 October 2009.

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 66 of the Standard 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 30 June, and so that the AGM must be held by 30 September each year.

The ownership of lots in this scheme is held by three companies. When dates for the AGM were canvassed in August, the directors of these companies were unable to agree on an acceptable date in September. Accordingly, the owners now seek to hold the AGM in October.

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] Moreover, in this case the delay will not be significant and is agreed to by all owners.

In the circumstances I am satisfied that it is appropriate to make an order the AGM will not be invalid if it is held during October. I have also authorised the Committee (being the Committee elected at the 2008 AGM) to call and convene the meeting.

It appears that September school holidays have impacted on this issue. If it is likely that there will be an ongoing difficulty in arranging suitable AGM dates in September, owners could consider including a motion at the October AGM to seek an order of an adjudicator to change the financial year end date (see section 283 of the Act) to a date that will enable AGMs to be held at a more mutually convenient time.

[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).

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

One One Three [2009] QBCCMCmr 344 (10 September 2009)