Walton's Retreat [2009] QBCCMCmr 402 (15 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0972-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22687
Name of Scheme:	Walton’s Retreat
Address of Scheme:	60 Warana Street THE GAP QLD 4061

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

the Body Corporate

I hereby declare that an annual general meeting held by the body corporate by the end of November 2009 will not be invalid simply because it is held more than three months after the end of financial year of the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0972-2009

“Walton’s Retreat” CTS 22687

Application

Walton’s Retreat Community Titles Scheme (WR) is a 30 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

The committee resolved to bring this application for a declaratory order to authorise the holding of an annual general meeting outside the time required by the legislation. This is on the basis that the meeting was delayed due to various searches and legal advice regarding a motion that the committee wished to put to the annual general meeting.

Decision

Obviously, it is preferable that annual general meetings be held within three months of the end of financial year as required by the legislation (Accommodation Module, 64). 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.[1] It has also been held that an adjudicator, in giving directions for the calling and holding of a meeting, is not limited to the time frames provided in the legislation.[2] These decisions support an interpretation that, as with the traditional rules of meeting procedure, the provisions of the Regulation Modules enable a meeting to proceed in an orderly fashion so as to ascertain the will of owners on each proposal but are not a series of mandatory rules that invalidate all of the proceedings of the meeting if one essential step is not followed.[3]

Unexpected delays can impact on the calling of an annual general meeting. In the case of unavoidable or unexpected delays it is understandable that the annual general meeting may be held a month or two late. The submissions indicate that the committee will shortly be able to call the annual general meeting. In the present circumstances, I am prepared to make a declaration that the annual general meeting will not be invalid merely because it is held late. This declaration will, however, only be effective if the meeting is only one month late. If further delays are anticipated then the committee should call the annual general meeting and subsequently call an extraordinary general meeting if necessary.

Order

For these reasons, I make the order above.

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[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.
[2] Holloway and Wilson and Watts v Meek District Court (Maroochydore), Appeal 22/1998, Dodds DCJ, 24 December 1998.
[3] Refer Johnson v Beitseen (1989) 41 IR 395 at 415.