Baronnet [2009] QBCCMCmr 359 (21 September 2009)

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

I hereby declare that the Committee for the Body Corporate for Baronnet is authorised to reissue a notice inviting nominations for the annual general meeting, and provide a minimum of 21 days for owners to respond, notwithstanding that the end of the financial year for the scheme has passed.

I further declare that an annual general meeting of the Body Corporate for Baronnet held by 30 December 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 Body Corporate for Baronnet include a copy of this order and statement of reasons with the notice to owners inviting committee nominations for the annual general meeting.

Baronnet community titles scheme 9557 (Baronnet) consists of 65 lots and common property. The community management statement (CMS) for Baronnet indicates that the Body Corporate and Community Management (Standard) Regulation 2008 (Standard Module) applies to the scheme.

Under the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Baronnet (applicant) on 17 September 2009, pursuant to a resolution passed outside a committee meeting on 17 September 2009.

The Body Corporate for Baronnet is seeking a Declaratory Order as per the attached Committee Resolution Voted Outside of a Committee Meeting (attachment 'A'). Allowing the Body Corporate the to re-issue the Notice to Owners Inviting Nominations to join the Committee for the 2009/10 financial year in accordance with Regulation 16 (1) (5) of the Body Corporate & Community Management (Standard Module) Regulations 2008.

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]

On 10 August 2009 the Body Corporate Manager for the scheme issued a notice inviting nominations for the annual general meeting (AGM). On 11 September 2009 the Committee established that this had not received this notice although the Body Corporate is unable to ascertain why the normal postal methods were not successful on this occasion.

Accordingly, the Body Corporate seeks authorisation to reissue the notice with a 21-day notice period and, if it is then necessary to hold the AGM in December, to authorise the late AGM.

Section 66 of the Standard Module provides that an 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. It would appear from the material provided that the end of the financial year for the scheme is 31 August, and so the AGM must be held by 30 November each year.

Normally section 16 of the Standard Module requires that notice inviting nominations for the committee must be sent 3-6 weeks before the end of the financial year. It seems clear that the Body Corporate has genuinely attempted to comply with the legislative requirements but that the AGM notice was not received by owners, either because of an inadvertent error or some factor beyond the Body Corporate’s control.

Obviously it is preferable that the legislative requirements in regard to notices and the AGM timeframe are 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] There is no indication that the Committee and the Body Corporate Manager have not acted in good faith in this matter.

In the circumstances I am satisfied that it is appropriate to make a declaratory order authorising the Committee to reissue the notice inviting committee nominations notwithstanding that the end of the financial year has now passed. The reissued notice must ensure that owners receive a minimum of 21 days to submit nominations. The Committee can then finalise the AGM agenda and issue the AGM notice, providing a minimum of 21 clear days notice before the meeting.

The Committee may be able to complete these steps and convene the AGM before the statutory limit of 30 November 2009. The Committee should make all reasonable efforts to achieve this. However, if they cannot I have made an order to the effect that if the AGM is not able to be held until December that the meeting will not be invalid simply because it was outside the statutory time limit. 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:	9557
Name of Scheme:	Baronnet
Address of Scheme:	10-14 Enderley Avenue SURFERS PARADISE QLD 4217

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Baronnet [2009] QBCCMCmr 359 (21 September 2009)