Chez Jose [2009] QBCCMCmr 78 (3 March 2009)

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

I hereby order that Douglas Galbraith, of 2/29 Clarence Road, Indooroopilly, Q 4068, is appointed to call, hold, and chair a general meeting (the meeting) of the Chez Jose Body Corporate in accordance with this order and within 3 months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting and deciding committee member positions. Mr Galbraith shall hold the appointment for the period beginning on the date of this order until the close of the meeting ordered to be held.

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 an annual general meeting of the body corporate.

I further order that Mr Galbraith shall issue a notice of the meeting in accordance with sections 70(1), (2) and (3) of the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module) and except as provided in this order, the meeting must be called and held in accordance with the Act and the Standard Module.

I further order that for the purposes of calling and chairing the meeting, Mr Galbraith shall have all the powers of 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; and
To incur any expenditure other than that reasonably necessary for the calling and

holding of the meeting, and expenses that must necessarily be met and are capable

of being authorised and incurred by a committee under the legislation.

I further order that all owners, shall, within 7 days of the date of this order, deliver all books and records of the body corporate in their possession to Mr Galbraith.

I further order that for the purposes of determining the future financial years of the Body Corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.

This application was made by Rob McKilliam, the owner of lot 4, seeking a declaratory order that Douglas Galbraith, a co-owner of lot 2 he be appointed to convene a valid annual general meeting (AGM) of the body corporate.

In the grounds to the application, Mr McKilliam states that an AGM has not been held since 2004. He further states that numerous attempts to contact the secretary and owner of lot 1, Ms Liane Maxfield, during the last six months have failed.

An informal meeting of three of the four owners was held at 7:30pm on Wednesday 18 February 2009. This meeting resolved to seek a declaratory order to hold an AGM convened by Mr Galbraith.

Written consent to the application has been provided by Tim Silva, the owner of lot 3 and the co-owners of lot 2, Douglas and Kate Galbraith.

“Chez Jose” Community Titles Scheme 22201 was registered as a group title plan (now known as standard format plan) of subdivision on 30 August 1978 comprising four lots and common property. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module).

This is a dispute between the owners of three lots and the body corporate concerning the failure to call AGMs as prescribed by the legislation and comes within the dispute resolution provisions of the Act (see ss.226, 226 & 228).

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) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Specifically, without limiting the power of an adjudicator to make an order under section 276(1), an
adjudicator may make an order ... appointing an administrator, and authorising the administrator to perform—
(a) obligations of the body corporate, its committee, or a member of the committee under this Act or the community management statement; or
(b) obligations of the body corporate under another Act.

The statutory requirements regarding the holding of a general meeting are set out in Chapter 4 of the Standard Regulation Module which provides that a meeting must be held each year. The body corporate must also prepare an administrative and sinking fund budget each financial year. The budgets forecast anticipated expenditure and form the basis for setting the annual contributions payable by the owner of each lot, to the administrative and sinking funds.

Where a body corporate has failed to hold its required annual general meetings in accordance with the legislation and otherwise fails to comply with its statutory obligations, it is necessary for an adjudicator to make an order appointing an administrator to call and hold an annual general meeting of the body corporate. The purpose of such an order is to establish the body corporate on a proper legal footing, and to facilitate the body corporate conducting its affairs in accordance with the legislation, including, by maintaining required records.

I note that Mr Galbraith has consented to convene the meeting and in circumstances where three of the four owners have consented to his appointment, I am satisfied that it is reasonable and necessary for me to make an order appointing Mr Galbraith as Administrator to call, hold, and chair an annual general meeting of the body corporate.

For the purposes of determining the future financial years of the body corporate, the end of the financial year shall be the last day of the month immediately preceding the month in which the anniversary of the meeting authorised by this order falls.

Number of Scheme:	22201
Name of Scheme:	Chez Jose
Address of Scheme:	1 / 29 Clarence Road INDOOROOPILLY QLD 4068

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Chez Jose [2009] QBCCMCmr 78 (3 March 2009)