Parkway [2009] QBCCMCmr 354 (17 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0524-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20819
Name of Scheme:	Parkway
Address of Scheme:	137 Olearia Street West EVERTON HILLS QLD 4053

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

Sebastian Faliguerho the Owner of lot 1

I hereby order that Australasian Body Corporate Management (Qld) Pty. Ltd. is appointed as Administrator to call, hold, and chair an annual general meeting of the Parkway Body Corporate within 3 months from the date of this order. 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 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. I further order that for the purposes of determining the future financial years of the Body Corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0524-2009

“Parkway” CTS 20819

Application

Parkway is a 3 lot scheme on a Group Title Plan, now known as a standard format plan.
The applicant is the owner of lot1 and seeks the following order:

The appointment of an administrator to call an AGM for Parklands in accordance with the Act.

The applicant obtained a quotation from Capitol Body Corporate Administration and suggested that Capitol Body Corporate Administration be appointed as administrator.

The applicant states that an AGM has not been held for the scheme since 2002 although the owner of lots 2 & 3 claims to be acting as the Secretary of the body corporate and as the body corporate manager. Nevertheless the owner of lots 2 & 3 purports to exercise the powers of the body corporate committee by issuing directions to other lot owners and on four occasions has issued a “Notice of continuing Contravention of a Body Corporate By-law” to the applicant. The applicant also states that on one occasion the owner of lot 3 sought to enforce the scheme by-laws against him in the Magistrates Court, although the matter was dismissed by the magistrate.

It is claimed that the continuing harassment by the lots 2 & 3,including written and verbal threats, has had an adverse impact on the health of the applicant’s partner and as a result is seeking an order from the Magistrate’ Court pursuant to the Peace and Good Behaviour Act.
It is also claimed that the owner of lots 2 & 3 has undertaken landscaping work on the common property without seeking approval of other lot owners for this work and the attendant expenditure.

Attached is a letter from Capitol Body Corporate administration which states:

“ I have been asked whether I would be prepared to accept an appointment as an Administrator of the above scheme, in the event that an order is made appointing an Administrator to the scheme.

I confirm the verbal advice given to members of the committee on behalf of the Applicants to the effect that I am prepared to accept an appointment as Administrator if an order is made. I further confirm that my fee for this work will be calculated at the rate of $125.00 per hour, plus GST plus reasonable disbursements.”

Pursuant to section 243 of the Act the lots 2 & 3 was invited to respond to the application, and made the following submissions:

• She also wishes to have an outside administrator and obtained a number of quotations;
• She contacted Capitol Body Corporate Management who quoted an hourly rate of $125 plus GST which she regards as being too expensive;
• AD Body Corporate quoted $300 to conduct the AGM but she regarded their follow up management charges as high;
• She also contacted Australasian Body Corporate Management (Qld) Pty. Ltd. which she prefers because their fees are reasonable for the services that they provide and they seem to be experienced and knowledgeable in their field.
  

Attached to the submission were two letters from Australasian Body Corporate Management (Qld) Pty. Ltd.

The first letter, from Ms Beverly Campbell, sated that she consents to the appointment as administrator of the scheme and that the cost to the scheme of carrying out the duties and responsibilities attached to such a position would be $330 (inc GST). The second letter confirmed that Australasian Body Corporate Management (Qld) Pty. Ltd. would be available to act as body corporate manager for the scheme at a cost of $275 per unit per year.

Jurisdiction

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
(c) a claimed or anticipated contractual matter about-
(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)). Specifically, without limiting
the power of an adjudicator to make an order under section 276(1), an adjudicator may make an order ... appointing an administrator, and authorising the administrator to perform—
(a) obligations of the body corporate, its committee, or a member of the committee under this Act or the community management statement; or
(b) obligations of the body corporate under another Act.

Section 301 of the Act, headed Appointment of Administrator provides –

301 Appointment of administrator
(1) This section applies if an order is made under this chapter appointing an administrator.
(2) The administrator has the powers given to the administrator under the order.
(3) Without limiting subsection (2), the power may include power to levy a special contribution against the owners of lots included in a community titles scheme to meet the cost of complying with obligations to which the order relates and the costs of the administration.
(4) The order may—
(a) withdraw all or particular stated powers from the body corporate, a body corporate manager to whom a power has been given under section 119 or 120, or stated officers of the body corporate
until the administrator has taken the necessary action to secure compliance with the obligations; and
(b) require officers of the body corporate or a body corporate manager mentioned in paragraph (a) to take stated action to help perform the work the administrator is required to perform; and
(c) fix the administrator’s remuneration.
(5) The administrator’s remuneration is to be paid out of the funds of the body corporate.
(6) This section does not apply to the enforcement of a monetary obligation of the body corporate arising under another Act unless it is an enforceable money order.


Determination

Where a body corporate has failed to hold its required annual general meetings in accordance with the legislation and otherwise fails to comply with its statutory obligations, it is necessary for an adjudicator to make an order appointing an administrator to call and hold an annual general meeting of the body corporate. The purpose of such an order is to establish the body corporate on a proper legal footing, and to facilitate the body corporate conducting its affairs in accordance with the legislation, including, by maintaining required records.

I note that Australasian Body Corporate Management (Qld) Pty. Ltd. has consented to act as the Administrator and in the circumstances, I am satisfied that it is reasonable and necessary for me to make an order appointing Australasian Body Corporate Management (Qld) Pty. Ltd. as Administrator to call, hold, and chair an annual general meeting of the Body Corporate.

For the purposes of determining the future financial years of the Body Corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.