Regal Court Cairns [2009] QBCCMCmr 421 (27 October 2009)

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

I hereby declare that an annual general meeting of the Body Corporate for Regal Court Cairns held by 31 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 current Committee for the Body Corporate for Regal Court Cairns is authorised to call and conduct the annual general meeting for 2009, notwithstanding that the legislative timeframe for the meeting has expired.

I further order that the Body Corporate for Regal Court Cairns include a copy of this order and statement of reasons with the notice to owners of the annual general meeting.

Regal Court Cairns community titles scheme 34055 (Regal Court Cairns) consists of eight lots and common property. The community management statement (CMS) for Regal Court Cairns indicates that the Body Corporate and Community Management (Standard) Regulation 2008 (Standard Module) applies to the scheme.

The purpose of this order is to replace an earlier order made on 23 October 2009 to correct, under the ‘slip rule’, a typographical error in the scheme name.

Under the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for RegalCourt Cairns (applicant) on 20 October 2009, pursuant to a resolution passed outside a committee meeting on 8 October 2009.

Adjudicator to authorise Trimble Real Estate Pty Ltd to convene the annual general meeting for "Regal Court" body corporate 2008/2009 financial year, late and thereby enabling future AGM's to be held within 3 months of "Regal Court" financial year.

I wish to clarify that the meeting referred to is for the financial year 1/2/08 - 31/1/09. We request that we can hold this meeting before 31/12/09.

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 the end of the financial year for this scheme is 31 January, and so an AGM must be held by 31 April each year. It appears that while AGMs have been held each year for Regal Court Cairns, since 2004 they have been held late – from July and October each year.

The scheme now has a new body corporate manager who has proposed that the Body Corporate seek authorisation for the 2009 AGM to be held late, and for AGMs to be held within the legislative timeframe from 2010 onwards.

Obviously it is preferable that an AGM be held within the prescribed timeframe, and a body corporate should make every effort to ensure that this timeframe is 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 clearly not possible for the 2009 AGM to now be held within the legislative timeframe.

In the circumstances I am satisfied that it is appropriate to make an order the 2009 AGM will not be invalid if it is held by 31 December 2009. Although I have allowed the full period requested in the application, a meeting could potentially be held within a month and so I would encourage the Body Corporate to conduct the 2009 AGM as soon as possible.

The Body Corporate should then ensure that its next AGM is held before 31 April 2010. I appreciate that this leaves a period of only 3-4 months between AGM’s but it is important that the Body Corporate returns to conducting its meetings in accordance with the legislative timeframes. If owners would prefer to have AGMs held later in the year they could consider passing a general meeting resolution to change the financial year end date pursuant to section 283 of the Act.

To avoid any doubt, I have authorised the current Committee to call and convene the 2009 AGM prior to 31 December 2009. I have also required that this order and reasons be circulated to all owners to ensure that all owners are aware of the issues.

[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:	59
Name of Scheme:	Regal Court Cairns
Address of Scheme:	22 Barrett Street Bungalow Qld 4870

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Regal Court Cairns [2009] QBCCMCmr 421 (27 October 2009)