Carrsley [2009] QBCCMCmr 479 (30 November 2009)

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

I hereby declare that an annual general meeting of the Body Corporate for Carrsley held within three months of the date of this order 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 declare that the owners of the Body Corporate for Carrsley, represented by AD Body Corporate Managers, are 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 Carrsley provide a copy of this order and statement of reasons to all owners within seven (7) days of the date of this order.

Carrsley community titles scheme 29457 (Carrsley) consists of three lots and common property. The community management statement (CMS) for Rydal Mount Court indicates that the Body Corporate and Community Management (Standard) Regulation 2008 (Standard Module) applies to the scheme.

This application was lodged on 24 November 2009 under the Body Corporate and Community Management Act 1997 (Act), by the Body Corporate for Carrsley (applicant) and signed by all owners.

That Body Corporate of "Carrsley" CTS 19457 authorise AD Body Corporate Managers to hold an Annual General Meeting outside of their financial period.

That A D Body Corporate Managers be authorised to hold the Annual General Meeting on behalf of "Carrsley" CTS 19457.

"Carrsley" CTS 19457 was self managed before coming over to AD Body Corporate Managers.

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 end of the financial year for the scheme is 30 June, and so an AGM must be held by 30 September each year. It appears this scheme was managed by the owners until 10 August 2009, when AD Body Corporate Managers (ADBC) were apparently appointed. The application indicates ADBC were unable to call the AGM within the required period.

The application does not explain why the owners had not called the 2009 AGM themselves or why it took over three months from the apparent engagement of ADBC for this application to be lodged. A case manager from the Commissioner’s Office sought clarification of the delay, as the application was originally silent, and received only a very limited response in this regard. However I am loathe to delay this matter further by seeking more adequate information.

Obviously it is preferable that the legislative requirements in regard to notices and the AGM timeframe are 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] Fundamentally, it is obviously not possible for the 2009 AGM to now be held by 30 September.

In the circumstances I am satisfied that it is appropriate to make an order extending the time for the conduct of the 2009 AGM.

The application has requested three months to call the AGM. Given that it is already five months since the end of the financial year and over three months since ADBC was engaged, I have difficulty in seeing why a further three months is required to hold the AGM. However, noting the forthcoming Christmas period, I will allow the requested time but encourage the Body Corporate to pursue the AGM as soon as possible.

The applicant gives no indication as to whether an existing committee exists. Therefore, to avoid any doubt, I have also authorised the current owners, as represented by ADBC, to convene the meeting. In addition I have required that this order and reasons be circulated to all owners.

[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:	19457
Name of Scheme:	Carrsley
Address of Scheme:	15 Carr Street BULIMBA QLD 4171

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Carrsley [2009] QBCCMCmr 479 (30 November 2009)