Silvapine Villas [2010] QBCCMCmr 169 (15 April 2010)

Number of Scheme:	8160
Name of Scheme:	Silvapine Villas
Address of Scheme:	31 Nyanza Street WOODRIDGE QLD 4114

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

I hereby declare that an annual general meeting of the Body Corporate for Silvapine Villas called and held by 30 May 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 for Silvapine Villas.

I further order that the Committee for the Body Corporate for Silvapine Villas is authorised to call and conduct the annual general meeting for 2010, notwithstanding that the legislative timeframe for the meeting has expired.

The Silvapine Villas community titles scheme 8160 (Silvapine Villas) consists of 50 lots and common property. The community management statement (CMS) for Silvapine Villas indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module) applies to the scheme.

Under the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Silvapine Villas (applicant) on 6 April 2010, pursuant to a committee resolution dated 12 February 2010.

That the body corporate be given an extension for the date of the Annual General Meeting.

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 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 end of the financial year for the scheme is 31 December, and so the AGM must be held by 31 March each year. In this instance the application advises that the timeframe for the AGM had been exceeded due to the resignation of the chairperson. Accordingly, they seek an extension until 30 May 2010 to call and conduct the meeting.

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. 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]

Given the time frames involved, the 2010 AGM cannot now be held within the legislative timeframe. If the Committee were to call the AGM now, the convening and conduct of the AGM could be invalid in the absence of the authorisation of an adjudicator. This would leave in doubt the legal status of the Body Corporate, as well as the validity of any decisions purportedly passed by any AGM. This would clearly not be in the interests of owners.

In the circumstances, I am satisfied that it is appropriate for an order to be made that the AGM will not be invalid if it is held within the timeframe specified in this order. Having regard to the 21-day notice requirements in section 32 of the Accommodation Module, the AGM could be held within as little as a month of the date of this order. I will allow the body corporate until 30 May 2010 to call and convene the AGM but would encourage them to do so earlier if that is practical. Further, to avoid any doubt, I have also authorised the current Committee to call and convene the 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

Silvapine Villas [2010] QBCCMCmr 169 (15 April 2010)