Tulip Haven [2009] QBCCMCmr 68 (27 February 2009)

Last Updated: 9 March 2009

REFERENCE: 0039-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26123
Name of Scheme:	Tulip Haven
Address of Scheme:	17 Denham Street BRACKEN RIDGE QLD 4017

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Lyndall Soetens, committee member

I hereby order that a general meeting of the body corporate held on or before 30th April 2009, shall be deemed to be the annual general meeting of the body corporate notwithstanding that the date of the general meeting is outside the period ending three months after the scheme’s financial year. I further order that Ian D’Arcy , director of Capitol Body Corporate Administration may convene the general meeting, and chair the meeting if there is no chairperson present, acting in the role of administrator only for the purpose only of convening and conducting the meeting, in accordance with the terms of a letter dated 13th January 2009 and referred to in the reasons for this decision.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0039-2009

“Tulip Haven” CTS 26123

APPLICATION
This is an application dated 12th January 2009 and amended on 3rd February 2009 by Lyndall Soetens, (the Applicant) committee member in the scheme of Tulip Haven CTS 26123, for a declaratory order that the body corporate for Tulip Haven (the body corporate) might be permitted to hold its annual general meeting outside the time prescribed in the legislation.

JURISDICTION
Tulip Haven CTS 26123 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are 20 lots in the scheme .

Section 66 Standard Module requires that the annual general meeting for a community title scheme is held within three months after the end of the scheme’s financial year.

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 the exercise of rights or powers, or the performance of duties, under the Act. An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)).

SUBMISSIONS
The Applicant has provided a document signed by 12 lot owners that she is authorised to make this application. The Applicant advises that StrataCare, the body corporate manager or former body corporate manager failed to attend the convened annual general meeting on 9th December 2008 and now the body corporate is “out of time” for holding its annual general meeting because the financial year ended in September. The body corporate wishes to engage Ian D’Arcy (Mr D’Arcy) of Capitol Body Corporate Administration to call an annual general meeting at the rate of $125 per hour (plus GST and reasonable disbursements) as set out in his letter dated 13th January 2009 to this Office.

DETERERMINATION
In this matter I have not been advised why the body corporate did not proceed with its annual general meeting on 9th December 2008. There is no legal requirement for a body corporate manager to call a meeting, to be in attendance at a general meeting, or for the body corporate to engage a body corporate manager at all. Nevertheless, it appears that the meeting did not take place, or was not recorded as an annual general meeting of the body corporate.

However, I am satisfied that the majority of the body corporate is keen to hold a general meeting which may be deemed to be its annual general meeting and to this end, the existing committee (the members of which have not been described other than the Applicant and Margaret Faulkner, Secretary) wish to engage Mr D’Arcy as a “one off” in the role of an administrator.

I do not entirely understand the committee’s reluctance to convene the meeting itself, but that is a matter for the committee and the body corporate. Mr D’Arcy may act as an administrator for the purpose only of convening a general meeting which will be deemed to be the annual general meeting for this scheme on the terms set out in his letter of 13th January 2009. Mr D’Arcy may also chair the meeting if there is no chairperson present for whatever reason.