Crosswinds [2009] QBCCMCmr 459 (19 November 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Desideria Geertruida McNair, the Owner of Lot 2

I hereby order that -

(1) Beverly Joan Duce of Duce Management Services (26 Canning Street, North Ipswich Qld 4305) is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Crosswinds 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 purposes of the Body Corporate and Community Management Act 1997 (‘the Act’), the meeting shall be deemed to be the first annual general meeting of the Body Corporate.

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, except as otherwise provided for in this order, the meeting shall be called and held in accordance with the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the ‘Standard Module’), and that the agenda for the meeting must include the items stated in section 77(3) of the Standard Module and may also include any other motion properly submitted.

I further order that the administrator’s fees for this appointment of $330 (inc GST) shall be paid by the Body Corporate for Crosswinds.

I further order that for the purposes of determining the future financial year of the Body Corporate for Crosswinds, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.

Crosswinds community titles scheme (Crosswinds) consists of twpo 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.

Pursuant to the Body Corporate and Community Management Act 1997 (Act). The This application was made by Desideria Geertrudida McNair, the owner of Lot 2 (applicant) on 19 November 2009 seeking a declaratory order in the following terms:

To appoint Duce Management Services to convene a General Meeting in order to validate the existing Body Corporate "CROSSWINDS" CMS2560

The application is signed by the Owner of Lot 1, who has also provided a written consent to the appointment of Beverly Duce of Duce Management Services.

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 community management statement 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:

The Body Corporate for Crosswinds was established when the scheme was created, apparantly in September 1993. When the applicant purchased her lot in 2006 she understood that the Bdoy Corporate was not functioning and there is no indication that any formal body corporate meetings have been held since then. As such the Body Corporate is not currently operating on a proper legal footing. Moreover, there is no indication that there have ever been formal meetings.

Section 77 of the Standard Module provides that the original owner must call and hold the first annual general meeting (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 meeting must include the items set out in section 77(3) of the Standard Module.

If the original owner does not call and hold the first annual general meeting as required by the section, 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 77(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.

Both owners have consented to the appointment of Duce Body Corporate Management Services to convene an AGM of the Body Corporate. In the circumstances, I am satisfied that an order should be made for the appointment of Duce as administrator to call and hold an AGM in order to put the Body Corporate for Crosswinds on a proper legal basis.

As the indications are that there have never been AGMs held for the scheme, I have deemed this administrator meeting as the first AGM and set the end of financial year for the scheme in relation to the date of this meeting.

[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:	2560
Name of Scheme:	Crosswinds
Address of Scheme:	129 Harris Road KINGAROY QLD 4610

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Crosswinds [2009] QBCCMCmr 459 (19 November 2009)