Hai [2009] QBCCMCmr 389 (9 October 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Pathos Superannuation Pty Ltd , the Owner of Lot 1 and 2

I hereby order that -

(1) The Community Managers (42, Grafton Street Qld 4556) are appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Hai 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 meeting shall be deemed to be the first annual general meeting of the Body Corporate for Hai.

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 called and held in accordance with the Act and the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 (the ‘Small Schemes Module’), and that the agenda for the meeting must include the items stated in section 38(3) of the Small Schemes Module and may also include any other motion properly submitted.

I further order that the administrator’s fees and outgoings for this appointment are to be paid by the Body Corporate for Hai.

I further order that the next financial year end date of the Body Corporate for Hai shall be 30 June 2010 and that, thereafter, each successive financial year for the Body Corporate for Hai shall commence on 1 July and end on 30 June.

Hai community titles scheme 36485 (Hai) consists of six lots and common property. The scheme’s community management statement (CMS) indicates that the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 (Small Schemes Module) applies to the scheme.

This application was made by Pathos Superannuation Pty Ltd, Owner of Lot 1 and 2 (applicant), represented by its director Thomas Brown, on 22 September 2009 pursuant to the Body Corporate and Community Management Act 1997 (Act).

The Body Corporate for Hai CTS 36485 as a registered scheme under the BCCM Act 2007 would like to request that an administrator be ordered to hold a first Annual General Meeting.

The Body Corporate for Hai CTS 36485 as a registered scheme under the BCCM Act 2007 would like to request a change in their end of financial year to 30 June.

The application indicated that the representative of the applicant company was also the representative of the other three owners in the scheme. However the application included insufficient evidence of this representation.

An email is included from Helen Randall purportedly acting for the owner of Lot 3, Gary Olsen. However no documentation was provided evidencing the authority of Ms Randall to act for Mr Olsen. An email is also provided from Juanita Dawson purporting to act for the owner of Lot 4, TSLFox Pty Ltd, and the owners of Lots 5 and 6, Anne and Alan Williams. However no documentation is provided evidencing the authority of Ms Dawson to act for these owners.

Our Office contacted the applicant to invite him to provide appropriate evidence of the representation of the other owners or signed consent from those owners, or that alternatively we would seek written submissions from owners. The applicant requested that we seek submissions. Accordingly, under section 243 of the Act, a copy of the application was provided to each owner with an invitation to respond to the matters raised in the application.

A submission was received from the Owner of Lot 4. However the submission included no comment on the matter. A member of our Office contacted the owner who declined to comment in writing and made the verbal comment that ‘everything was fine’. No submissions were received from the other lot owners. In the circumstances I can only assume that the other owners do not object to the application.

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 CMS, or the exercise of rights or powers, or the performance of duties, under the Act or the CMS.

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:

In addition, section 283 of the Act specifically provides that, with the consent of the body corporate, the order of the adjudicator may include a change of a body corporate’s financial year and of the dates when later financial years will begin.

The Body Corporate for Hai was established when the scheme was registered in 2007. The application states that the original developer did not hold a first annual general meeting (AGM) or any other general meetings. As such the Body Corporate is not currently functioning as required under the legislation. It appears the lots have recently been sold to new owners who wish to put the Body Corporate on a proper legal footing.

Section 38 of the Small Schemes Module provides that the original owner must call and hold the first AGM of a body corporate within two months after the first of the following:

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.
The agenda for the first AGM must include the items set out in section 38(3) of the Small Schemes Module.

If the original owner does not call and hold the first AGM as required by the legislation, the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first AGM within a stated time (section 38(4)). The purpose of such an order is to re-establish the body corporate and to facilitate the Body Corporate conducting its affairs in accordance with the legislation.

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 put the Body Corporate for Hai on a proper legal basis.

The applicant has requested the appointment of The Community Managers (TCM) as administrator. TCM has confirmed its willingness to be appointed, at a cost of $130. I am satisfied that this appointment is appropriate.

The application also asks that the financial year end be set to 30 June so that it is aligned with owner’s tax and financial reporting periods. To facilitate the management of the scheme’s financial affairs, I am satisfied that it is appropriate to make an order setting the financial year as requested.

[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:	36485
Name of Scheme:	Hai
Address of Scheme:	2 Morning Close PORT DOUGLAS QLD 4877

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Hai [2009] QBCCMCmr 389 (9 October 2009)