Perigian Place [2009] QBCCMCmr 372 (1 October 2009)

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

I hereby order that -

(1) Lew Wheller of Noosa District Body Corporate Management (Suite 9, 41 Sunshine Beach Rd Noosa Junction Queensland 4567) is appointed as administrator to call, hold and chair an extraordinary general meeting (‘the meeting’) of the Body Corporate for Perigan Place within three (3) 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 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, unless otherwise provided for in this order, the meeting shall be called and held in accordance with the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008.

I further order that the purpose of the meeting shall be to select a committee, and to consider any motions properly submitted by owners.

Perigan Place community titles scheme 22235 (Perigan Place) consists of four lots and common property. The scheme’s community management statement indicates the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme.

This application was made by Colin Balfour, Owner of Lot 3 (applicant) on 21 September 2009 under the Body Corporate and Community Management Act 1997 (Act). The applicant sought a declaratory order in the following terms:

Approval by the Office of the Commissioner to call an Extraordinary Meeting to form a committee for Perigian Place, CTS 22235, with previous committee lapsing. Pending approval to allow committee formation as soon as possible, with next AGM not scheduled until April 2010. Noosa District Body Corporate Management (NDBCM) are prepared to call the meeting at nil cost other then the cost of post, print and telephone expenses, estimated to be $50 GST inclusive (Attachment 2).

The applicant has provided a written consent to the application from the owners of each of the other three lots in the scheme.

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 CMS 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:

The application states that the committee for this scheme has ‘lapsed’ and so the owners are seeking to have an extraordinary general meeting (EGM) convened to enable a committee to be formed. The application indicates that the next annual general meeting (AGM)for the scheme is not due until April 2010.

Chapter 3, Part 2, Division 2 of the Standard Module provides for a committee to be chosen at each AGM, for an EGM to be held following the AGM if the AGM is unable to fill all positions on the committee, and for the filling of casual vacancies. However each of these processes requries a functioning Committee to be able to progress the processes to fill these vacancies. In this case it appears that there is not a validly functioning committee and so there is nobody currently authorised to call an EGM to enable the committee to be elected.

Accordingly the appointment of an administrator is necessary to convene a meeting to enable a committee to be elected. All owners have consented to the appointment of Lew Wheller of Noosa District Body Corporate Management for this purpose. Mr Wheller has advised that there would be no fee to call the meeting, other than expenses estimated at approximately $50 (inc GST).

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 enable the appointment of a committee. The meeting could also consider any other motions submitted in time to include on the agenda.

[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:	22235
Name of Scheme:	Perigian Place
Address of Scheme:	2 Kingfisher Place PEREGIAN PLACE QLD 4573

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Perigian Place [2009] QBCCMCmr 372 (1 October 2009)