Rydal Mount Court [2009] QBCCMCmr 378 (2 October 2009)

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

I hereby declare that Committee for the Body Corporate for Rydal Mount Court is authorised to issue a notice inviting nominations for committee positions and motions for the annual general meeting agenda, 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 the Committee for the Body Corporate for Rydal Mount Court is authorised to call and conduct the annual general meeting for 2009, notwithstanding that the legislative timeframe for the meeting has expired.

I further declare that an annual general meeting of the Body Corporate for Rydal Mount Court held by 20 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 Rydal Mount Court include a copy of this order and statement of reasons with the notice inviting nominations for committee positions and motions for the annual general meeting agenda.

Rydal Mount Court community titles scheme 14506 (Rydal Mount Court) consists of eight lots and common property. The community management statement (CMS) for Rydal Mount Court indicates that the Body Corporate and Community Management (Standard) Regulation 2008 (Standard Module) applies to the scheme.

This application was lodged on 28 September 2009 under the Body Corporate and Community Management Act 1997 (Act), pursuant to a resolution passed outside a committee meeting on 25 September 2009. The application names the applicant as the body corporate manager, Australasian Body Corporate Management (Qld) Pty Ltd. Given the nature of the application, the appropriate applicant would in fact be the Body Corporate for Rydal Mount Court. However, given that the application has been properly authorised by the Committee and to avoid further delay in this matter I do not consider it necessary to require clarification of this matter before proceeding.

The Committee is seeking a declaratory order from the Commissioner for extend time for

1) seeking requisitions from owners for inclusion of motions for the Annual General Meeting to 31.10.2009 or such earlier date as the commissioner may determine.

2) seeking nominations for positions on the committee for the 2009/2010 year to 31.10.2009 or such earlier date as the Commissioner may determine.

3) holding of the Annual General Meeting for 2009 not later than 20.12.2009 or such earlier date as the Commissioner may determine.

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

(c) a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

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 66 of the Standard 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 indicates that end of the financial year for the scheme is 30 June, and so the AGM must be held by 30 September each year. However the application indicates that there was some confusion as to the correct date of the AGM and potentially a delay related to a change of body corporate managers, resulting in an oversight in relation to the calling of the AGM.

Accordingly the Body Corporate seeks additional time to seek nominations for positions on the committee and to submit motions for inclusion on the agenda, and for an extension of the time to hold the 2009 AGM.

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] Moreover, it is obviously not possible for the 2009 AGM to now be held by 30 September 2009.

In the circumstances I am satisfied that it is appropriate to make an order extending the applicable times as sought.

The application has requested that the Body Corporate be given until 31 October 2009 to seek motions and committee nominations and to hold the AGM by 20 December 2009. Assuming the notice has been prepared and is ready to go, and allowing a 21-day period for response, this process could certainly be achieved by 31 October or slightly earlier. If the Committee met to finalise the agenda, an AGM notice could be issued shortly after that and, allowing for a minimum 21 clear days notice period, I would anticipate that the AGM could be held before the end of November. To allow for delays I have made an order relating to the dates sought in the application but would encourage the Committee to act hold the AGM sooner if possible to avoid any further delay in this matter.

To avoid any doubt, I have authorised the current Committee to issue the notices and 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:	14506
Name of Scheme:	Rydal Mount Court
Address of Scheme:	16 Booth Street TOOWONG QLD 4066

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Rydal Mount Court [2009] QBCCMCmr 378 (2 October 2009)