Points North Caloundra [2009] QBCCMCmr 99 (12 March 2009)

Last Updated: 29 April 2009

REFERENCE: 0212-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26383
Name of Scheme:	Points North Caloundra
Address of Scheme:	19 North Street CALOUNDRA QLD 4551

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

The Body Corporate,

I hereby declare that an annual general meeting held by the body corporate for Points North Caloundra Community Titles Scheme 26383 on or before 30 April 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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0212-2009

“Points North Caloundra” CTS 26383

Scheme

“Points North Caloundra” Community Titles Scheme 26383 comprises four lots and common property. It is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 (the Small Schemes Module).

Application

At an Extraordinary General Meeting (EGM) held on 4 February 2009, the body corporate resolved to bring this application for a declaratory order to authorise the holding of an Annual General Meeting (AGM)outside the time required by the legislation.

Determination

Obviously, it is preferable that AGMs be held within three months of the end of each of the community titles scheme’s financial years as required by the legislation (Small Schemes, section 31). 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. 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.[1]

Points North Caloundra was registered as a community titles scheme on 7 December 1998. As such, its end of financial year date is 30 November each year (see definition of “financial year” in Schedule 6 of the Act). The last AGM for the scheme was held on 8 February 2008 and minutes of that meeting have been provided to me. Although no AGM has yet been held this year, at the EGM on 4 February 2009, the body corporate engaged BUGT Small Schemes as its body corporate manager and to establish the books and records of the body corporate in accordance with the Act. A committee was elected and certain administrative matters were attended to, however it does not appear that any budgets or contributions towards an administrative and sinking fund were set. I understand that the body corporate intends to hold an AGM to deal with the financial administration of the scheme before the end of April. In the circumstances, I am prepared to make a declaration that the AGM will not be invalid merely because it is late. I will make this subject to the AGM being held by the end of April 2009.

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[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.