Paradise Palms [2009] QBCCMCmr 48 (3 December 2009)

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

I hereby declare that that an annual general meeting of the Body Corporate for Paradise Palms held by 30 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 declare that the Committee for the Body Corporate for Paradise Palms 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 Paradise Palms send a copy of this order and statement of reasons to all lot owners with the minutes for the annual general meeting.

Paradise Palms community titles scheme 23869 (Paradise Palms) consists of 92 lots and common property. The community management statement (CMS) for Paradise Palms indicates that the Body Corporate and Community Management (Accommodation) Regulation 2008 (Accommodation Module) applies to the scheme.

This application was lodged on 2 December 2009 under the Body Corporate and Community Management Act 1997 (Act), by the Body Corporate for Paradise Palms (applicant). The application was authorised by a resolution passed outside a committee meeting on 24 November 2009.

That the annual general meeting of the body corporate for Paradise Palms CTS 23869 called and held by 30 December 2009 will not be invalid simply because it is held more than 3 months after the end of financial year of the Body Corporate.

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 64 of the Accommodation 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 states that end of the financial year for the scheme is 30 August, and so the AGM must be held by 31 October each year. In fact if the end of financial year is 30 August, the deadline for the AGM is actually 30 November. Regardless that time has now expired.

The application indicates that the AGM notice was not issued in time because of an administrative error and a change of staff in the office of the Body Corporate Manager. A meeting has now been scheduled for 17 December 2009 with the notice of meeting was issued on 25 November 2009.

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] Moreover, it is obviously not possible for the 2009 AGM to now be held by the end of October or the end of November.

In the circumstances I am satisfied that it is appropriate to make the order sought. It would not be in the interests of owners for the validity of the AGM to be in doubt simply because of this delay.

To avoid any doubt, I have authorised the current Committee to call and convene the meeting. To ensure that all owners are aware of the circumstances involved, I have also required that this order and reasons be circulated to all owners with the minutes of the AGM.

[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:	23869
Name of Scheme:	Paradise Palms
Address of Scheme:	38 Murev Way CARRARA QLD 4211

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Paradise Palms [2009] QBCCMCmr 48 (3 December 2009)