Number One Alice Street [2009] QBCCMCmr 377 (2 October 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Cyndi Osborne, the Owner of Lot 2

I hereby order that -

(1) Carol Gough of Wise Body Corporate Managmeent (233 Kelvin Grove Road, Kelvin Grove Qld 4059) is appointed as administrator to call, hold and chair the annual general meeting (‘the meeting’) of the Body Corporate for Number One Alice Street 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 the meeting shall be deemed to be the annual general meeting of the scheme for 2009 and, except as 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 (Small Schemes Module) Regulation 2008.

I further order that for the purposes of determining the future financial year of the Body Corporate for Merimbula, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.

I further order that the administrator shall ensure that the body corporate has all necessary insurances required under Chapter 8 Part 9 of the Body Corporate and Community Management (Small Schemes Module) Regulation 2008.

I further order that the administrator’s fees for this appointment, being $200 plus GST, are to be paid by the Body Corporate for Number One Alice Street.

I further order that the administrator is authorised to levy contributions against the owners of lots if necessary to meet the costs of insurance and the administrator’s fees.

Number One Alice Street community titles scheme 33247 (Number One Alice Street) consists of three lots and common property. The scheme’s community management statement indicates the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 (Small Schemes Module) applies to the scheme.

This application was made by Cyndi Osbourne, Owner of Lot 2 (applicant) on 13 August 2009 under the Body Corporate and Community Management Act 1997 (Act). The applicant sought the following orders against the Body Corporate for Number One Alice Street (respondent):

The application included the signed consent of Gary Parsons, Owner of Lot 3. However it appears the Owners of Lot 2 and 3 had been unable to contact the Owner of Lot 1, Karen Miller.

Under section 243 of the Act, a copy of the application was provided to the Owners of Lot 1 and 3 with an invitation to respond to the matters raised in the application. The Commissioner’s Office then ascertained that the contact address provided by the applicant for Miller was incorrect. Miller provided the correct details and a submission agreeing to the application. A dispute resolution recommendation was made referring the matter to departmental adjudication.

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:

Section 31 of the Small Schemes Module provides that an annual general meeting (AGM) must be called and held within three months after the end of a scheme’s financial year. It is unclear from the material provide in the application when the last AGM was held for this scheme. However it is not disputed that the Body Corporate is not currently operating in accordance with the legislation. As it appears that there is no validly elected committee, there is no currently authorised to call a general meeting to progress the concerns of owners and get the scheme back on a proper legal footing.

Of most immediate concern to the applicant is that the Body Corporate’s insurances have lapsed and there is no-one authorised to sign cheques and operate the bank account to enable the insruance to be paid. The applicant would like to have a meeting to appoint Wise Body Corporate Management as a body corporate manager for the scheme under Chapter 3 Part 5.

All owners have consented to the appointment of Wise Body Corporate Management as administrator to call a general meeting. Carol Gough of Wise Body Corporate Management has consented to this appointment for three months and quoted a fee of $200 (plus GST) to undertake the role, inclduing arranging insurance coverage. This fee is payable by the Body Corporate.

In the circumstances, I am satisfied that an order should be made for the appointment of an administrator to call and hold an AGM in order to put the Body Corporate for Number One Alice Place back on a proper legal basis. At this meeting owners can consider either electing a committee or considering the appointment of a body corporate manager to take over the functions of the committee under Chapter 3 Part 5. The meeting should establish budgets, set cotnributions, and cosndier all other usual business of an AGM. The meeting can also include any other motions properly submitted by owners.

I have also ordered that the administrator make necessary arrangements to ensure that the Body Corporate has all required insurance.

As it is unclear from the application whether the Body Corporate current has sufficient funds to cover the cost of the administrator and necessary insurance, I have included a power for the administrator to levy contributions for these amounts if required.

Finally, facilitate the future management of the scheme’s financial affairs, I have included an order setting the financial year for the scheme relative to the AGM.

[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:	33247
Name of Scheme:	Number One Alice Street
Address of Scheme:	1 Alice Street KEDRON QLD 4031

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Number One Alice Street [2009] QBCCMCmr 377 (2 October 2009)