Wynyard Estate [2009] QBCCMCmr 355 (17 September 2009)

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

I hereby declare that an annual general meeting of the Body Corporate for Wynyard Estate held by 30 November 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 Wynyard Estate is authorised to call and conduct the annual general meeting for 2009, notwithstanding that the legislative timeframe for the meeting has expired.

I further order that the Body Corporate for Wynyard Estate include a copy of this order and statement of reasons with the notice to owners inviting committee nominations and motions for the annual general meeting.

Wynyard Estate community titles scheme 34055 (Wynyard Estate) consists of 66 lots and common property. The community management statement (CMS) for Wynyard Estate indicates that the Body Corporate and Community Management (Accommodation) Regulation 2008 (Accommodation Module) applies to the scheme.

Under the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Wynyard Estate (applicant) on 15 September 2009, pursuant to a resolution passed outside a committee meeting on 10 September 2009.

The applicant seeks a declaratory order of an adjudicator under the body corporate and community management act 1997 (The Act) as follows:

That the Commissioner makes a declaratory order that the annual general meeting be convened outside the time specified in regulation 64 of the BCCM (Accommodation Module) Act with the meeting to be held not later than 30 November 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 64 of the Accommodation 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 application states that the end of the financial year for the scheme is 31 May, and so the AGM must be held by 31 August each year.

Apparently as a result of an inadvertent administrative error, it seems invitations to nominate for committee and submit motions for the 2009 AGM were not sent to or received by owners. It appears that the Body Corporate was not aware of this problem until the matter was raised by owners who lodged a dispute resolution application (Reference 0777-2009) disputing the validity of the meeting that was scheduled for 26 August 2009.

In an order issued on 25 August 2009 the Adjudicator determining application 0777-2009 found that the defects in the calling of the meeting scheduled for 26 August 2009 were so substantive that it was necessary to invalidate the meeting. The Adjudicator noted that the Body Corporate needed to ‘start again’ and call a new meeting. She noted that if that means the AGM would be held out of time, then an application should be made for a declaration for that purpose. This application has been made by the Body Corporate as a result.

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, it is clearly not possible for the 2009 AGM to now be held within the legislative timeframe.

I note that the Committee resolution accompanying this application indicates that the cost of this application and the circulation of a new invitation to nominate for committee and submit motions to the AGM will not be at the Body Corporate’s expense. Presumably the body corporate manager is meeting these costs in light of the administrative error which arose.

In the circumstances I am satisfied that it is appropriate to make an order the AGM will not be invalid if it is held by 30 November 2009. This should provide adequate time to circulate the notice inviting nominations and motions, to finalise the agenda and to provide statutory notice of the meeting. To avoid any doubt, I have authorised the current Committee to call and convene the meeting. To ensure that all owners are aware of the circumstances involved, I have also required that this order and reasons be circulated 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] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (Unreported).

Number of Scheme:	34055
Name of Scheme:	Wynyard Estate
Address of Scheme:	90 Webster Road DECEPTION BAY QLD 4508

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Wynyard Estate [2009] QBCCMCmr 355 (17 September 2009)