Graceville Riverpark Villas [2010] QBCCMCmr 119 (11 March 2010)

Number of Scheme:	39379
Name of Scheme:	Graceville Riverpark Villas
Address of Scheme:	327 Verney Road East GRACEVILLE QLD 4075

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

I hereby declare that an annual general meeting of the Body Corporate for Graceville Riverpark Villas held by 30 April 2010 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 order that the Committee for the Body Corporate for Graceville Riverpark Villas is authorised to call and conduct the annual general meeting for 2010, notwithstanding that the legislative timeframe for the meeting has expired.

I further order that the Body Corporate for Graceville Riverpark Villas include a copy of this order and statement of reasons with the notice of meeting.

Graceville Riverpark Villas community titles scheme 39379 (Graceville Riverpark Vilas) consists of 20 lots and common property. The community management statement (CMS) for Graceville Riverpark Villas indicates that the Body Corporate and Community Management (Standard) Regulation 2008 (Standard Module) applies to the scheme.

Under the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Graceville Riverpark Villas (applicant) on 24 February 2010, pursuant to a committee resolution passed on 11 February 2010.

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

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

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.

In this scheme the financial year end is 30 November and so the AGM is required by the end of February.

The application states that the Committee experienced difficulties over the December/January period in preparing the budget, due to holidays and illness. The application states that a budget meeting has now been held but that the Committee is still awaiting lift maintenance costs to be able to finalise an accurate budget and call the AGM.

Obviously it is preferable that an AGM be held within the prescribed timeframe, and a body corporate should make every effort to ensure that this timeframe is complied with. Particularly when a scheme’s financial year ends around the Christmas/New Year period, committees should plan early to ensure that all necessary requirements are completed in time with allowances for unplanned delays. Applying for the order of an adjudicator should be considered only as a last resort and not as a means of avoiding the legislative requirements.

Notwithstanding that, 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 clearly not possible for the 2010 AGM to now be held within the legislative timeframe.

In the circumstances I am satisfied that it is appropriate to make an order the AGM will not be invalid if it is held out of time. I have allowed until the end of April for the meeting to be held but would encourage the Committee to convene the meeting earlier if reasonably possible.

To avoid any doubt, I have authorised the current Committee to call and convene the AGM. 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 notice of meeting.

[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).

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Graceville Riverpark Villas [2010] QBCCMCmr 119 (11 March 2010)