Walden Place [2009] QBCCMCmr 394 (13 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0945-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8230
Name of Scheme:	Walden Place
Address of Scheme:	14 Wren Street BOWEN HILLS QLD 4006

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

I hereby order that - (1) AD Body Corporate Managers (PO Box 49, Ashgrove Qld 4060) are appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Walden 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 the meeting shall be deemed to be the annual general meeting of the scheme for 2009 and, unless otherwise provided for in this order, shall be called and held in accordance with the Act and the Body Corporate and Community Management (Standard Module) Regulation 2009 (the ‘Standard Module’).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0945-2009

“Walden Place” CTS 8230

Walden Place community titles scheme 8230 (Walden Place) consists of three lots and common property. The scheme’s community management statement (CMS) indicates the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme.

APPLICATION

This application was made by Body Corporate for Walden Place (applicant) on 6 October 2009 under the Body Corporate and Community Management Act 1997 (Act). The application is signed by the company nominees of each of the three lot owners for the scheme.

The application seeks a declaratory order in the following terms:

That the body corporate for Walden Place CTS 8230 authorises AD Body Corporate Managers to hold an Annual General Meeting outside of their financial period.

That AD Body Corporate Managers be authorised to hold the Annual General Meeting on behalf of Walden Place. CTS 8230

Walden Place CTS 8230 was self managed before coming over to AD Body Corporate Managers. Their last recorded minutes was dated 2nd June 2006.

JURISDICTION

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:

(a) withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and
(b) require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and
(c) fix the administrator’s remuneration.

DETERMINATION

Section 60 of the Standard 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. The application states that the scheme records show that the last meeting of the Body Corporate was in June 2006. In the absence of an AGM for over three years, the Body Corporate is not currently operating on a proper legal footing.

There is no validly elected committee at present and so there is nobody currently authorised to call an AGM. Accordingly the appointment of an administrator is necessary to restart the Body Corporate. All owners have requested the appointment of AD Body Corporate Managers for this purpose.

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 Walden Place on a proper legal basis.

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[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