Cashmere Gardens [2009] QBCCMCmr 46 (10 February 2009)

Last Updated: 9 March 2009

REFERENCE: 0106-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23788
Name of Scheme:	Cashmere Gardens
Address of Scheme:	8 - 10 Homer Street CLEVELAND QLD 4163

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

I hereby order that for the purposes of the Body Corporate and Community Management Act 1997 (“the Act”), and pursuant to section 283 of the Act, the next financial year end date of the Body Corporate for Cashmere Gardens Community Titles Scheme 23788 shall be 30 April 2009, in place of the previous financial year end date. I further order that, thereafter, each successive financial year for the Body Corporate for Cashmere Gardens Community Titles Scheme 23788 shall commence on 1 May and end on 30 April.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0106-2009

“Cashmere Gardens” CTS 23788

Cashmere Gardens community titles scheme 23788 (Cashmere Gardens) consists of nine lots and common property. The scheme’s community management statement indicates the Body Corporate and Community Management (Standard Module) Regulation 2008[1] (Standard Module) applies to the scheme.

APPLICATION

This application was made under the Body Corporate and Community Management Act 1997 (Act) by the Body Corporate for Cashmere Gardens (applicant) on 9 February 2009, and seeks the following declaratory order:

That the financial year be changed to end on the 30 April each year.

The application is made pursuant to Resolution 7 at the Annual General Meeting (AGM) of the Body Corporate on 2 February 2009. The resolution agreed to change the end of financial year from 31 October 2008 to 30 April 2009, with six votes in favour, none against and no abstentions.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2]

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 community management statement, or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 283 of the Act specifically provides that, with the consent of the body corporate, the order of the adjudicator may include a change of a body corporate’s financial year and of the dates when later financial years will begin.

DETERMINATION

The application says that the current financial year end date of 31 October results in AGMs being held during the Christmas holiday period. This has caused inconvenience for owners in attending AGMs. The proposed new date is expected to result in large attendances at AGMs.

In the circumstances, I am satisfied that the Body Corporate has properly consented to the proposed change of the Body Corporate’s financial year and that it is appropriate to make an order changing the financial year end date to 30 April in each year.

This order results in the Body Corporate having an abnormal length financial year for one year. The Body Corporate should be cognisant of this fact when managing its financial affairs. The minutes for the February AGM indicate that this has been noted.

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[1] As of 30 August 2008 the new Standard Module came into force, replacing the Body Corporate and Community Management (Standard Module) Regulation 1997 which applied until that date.
[2] See sections 227, 228, 276 and Schedule 5 of the Act