Austin Villas [2009] QBCCMCmr 413 (22 October 2009)

Last Updated: 13 November 2009

REFERENCE: 1011-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24598
Name of Scheme:	Austin Villas
Address of Scheme:	7 Austin Street WAVELL HEIGHTS QLD 4012

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

Vera Straubinger, the Owner of lot 1

I hereby declare that an annual general meeting held by the body corporate on or before 15 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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1011-2009

“Austin Villas” CTS 24598

Scheme

“Austin Villas” community titles scheme comprises two lots and common property. It is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (the Small Schemes Module).

Application

The owner of lot 1, Vera Straubinger brought an application for dispute resolution by conciliation regarding the administration of the body corporate.

The Commissioner’s Office conducted a conciliation session between the two lot owners to assist in the resolution of this dispute on 22 October 2009. The parties reached agreement in regard to the matters in dispute. The terms of that agreement were as follows:

1. Both parties agree that future contact between the owners will be in writing by email to either Mark Wecker or Ranya Mills from Ray White Nundah.
2. Marion Inglis agrees to provide contact details for Mark Wecker or Tanya Mills to Vera Staubinger as soon as possible.
3. The Body Corporate agrees to call and hold a general meeting, in the manner prescribed in the legislation, in order to resolve the following matters by decision of the body corporate:
   1. To revise the sinking fund budget for 2009 – 2010
   2. To revise the administration fund budget for 2009 – 2010
   100. To resolve whether or not to appoint a body Corporate Manager; and
   4. To resolve any other issues presented for resolution.
4. The owners of lots 1 & 2, Vera Straubinger and Marion Inglis, agree to seek permission from an Adjudicator, by way of a Consent Order, to vary the date of the annual general meeting to a time and date on or before 15 December 2009.
   

Jurisdiction

Section 276(5) of the Act provides that an Adjudicator may make a consent order, but the order may include only matters that may be dealt with under the Act, and must not include matters that are inconsistent with the Act or another Act.

Determination

Obviously, it is preferable that annual general meetings be held within three months of the end of financial year as required by the legislation (Small Schemes Module, section 31). 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. 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.[1]

In this instance, the parties, who were previously in dispute, have agreed to call and hold a general meeting on or before 15 December 2009. I understand that the annual general meeting, which was due to be held earlier in the year, did not take place. In the circumstances, I am prepared to make a declaration that the annual general meeting will not be invalid merely because it is late. I will make this subject to the annual general meeting being held on or before 15 December 2009.

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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.