Batlow [2010] QBCCMCmr 18 (14 January 2010)

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

I hereby order that Body Corporate Services Pty Ltd (appointee) is authorised to call, hold and chair an annual general meeting (meeting) of the body corporate for Batlow.

I further order that this authorisation:

Commences on the date of this order and ceases in three months from the date of this order unless altered by a subsequent order of an adjudicator. Further, the authorisation will cease immediately upon the appointment of a committee if that occurs earlier;
Allows the appointee to perform obligations of the committee or any member of the committee in respect of the calling, holding and chairing of the meeting. In particular, the appointee is to prepare proposed budgets for adoption by the body corporate at the meeting, submit motions as reasonably necessary, and prepare the minutes of the meeting; and
Is subject to the appointee, as far as practicable, following the procedures in the Standard Module governing giving notice for and holding an annual general meeting. In particular, a notice requesting nominations for committee positions and submission of motions for consideration at the meeting must give owners at least three weeks to submit their nominations and motions. However, the giving of notices and the holding of the general meeting need not coincide with the end of financial year date of the body corporate.

I further order that the appointee is entitled to a payment of $1,210 for completing the appointment in compliance with this authorisation unless the appointee can demonstrate that a greater amount is reasonably payable based on the appointees standard fees.

Batlow Community Titles Scheme (Batlow) is a 6 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

The applicant says that body corporate for Batlow is not functioning in accordance with the legislation. Orders are sought to appoint Body Corporate Services Pty Ltd (appointee) as administrator to call a meeting.

The submissions indicate that the scheme is not currently operating in accordance with the legislation. I am satisfied from the submissions that the body corporate for Batlow is being conducted in the absence of proper financial records, proper committee elections and proper conduct of meetings. Notwithstanding this, there appeared to be a functioning committee and the secretary indicated that he was concerned about the costs of appointing an administrator and that he would be able to call the annual general meeting himself. I therefore gave the secretary an opportunity to call and hold the annual general meeting. Subsequent submissions from the applicant indicated that she was not given proper notice of the meeting, that a person who no longer owns a lot was elected as chairperson, that there was no quorum at the meeting, and that no written voting papers were provided for persons who were unable to attend the meeting.

The provisions of the Standard Module related to the holding of meetings enable a meeting to proceed in an orderly fashion so as to ascertain the will of owners on each proposal but, as with the traditional rules of meeting procedure, do not appear to be intended as a series of mandatory rules that invalidate all of the proceedings of the meeting if one essential step is not followed.[1] The courts have commented that non-compliance with the regulations that is of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees.[2] However, the procedures adopted in the attempted calling of the annual general meeting appear to have been completely inadequate in that there appears to have been a failure to call for committee nominations and motions for consideration at the meeting, a failure to consider proper financial records at the meeting, a failure to provide owners with a voting paper in case they could not attend the meeting, and various other more minor failures to comply with the legislation.

In all the circumstances, I am satisfied that it is appropriate to grant an order authorising the appointee to call, hold and chair an annual general meeting. The appointee is entitled to perform obligations of the committee or any committee member in this respect and those actions will be taken to be actions done by the committee or member (Act, 278). In calling this meeting, the appointee should follow the legislative procedures as far as practicable. However, owners should be given three weeks to submit nominations and motions and then the meeting should be called immediately rather than waiting for the end of financial year of the body corporate.

The authorisation is limited to allowing the appointee to call the meeting within a three month period. The authorisation will also immediately cease as soon as owners have elected a committee as required by the legislation (Act, 98-101). If owners want the continuing assistance of the appointee as a body corporate manager throughout the year then a motion proposing appointment of the management company to provide administrative assistance as body corporate manager will need to be put to the meeting and adopted by owners.

Alternatively, if insufficient owners are willing to serve on the committee, another meeting may need to be called at which owners can vote by secret ballot on whether to engage a body corporate manager to actually perform the functions of the committee instead of just providing administrative assistance (Standard Module, 41).

I note that there have been no specific objections to the rates charged by the appointee and that the appointees subsequent estimate of $1,100 plus GST appears reasonable. I will therefore order that the appointee is entitled to a payment of $1,210 for completing the appointment in compliance with this authorisation unless the appointee can demonstrate that a greater amount is reasonably payable based on the appointees standard fees.

[1] Refer Johnson v Beitseen (1989) 41 IR 395 at 415.
[2] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.

Number of Scheme:	20576
Name of Scheme:	Batlow
Address of Scheme:	1-5 Universal Street OXENFORD QLD 4210

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Batlow [2010] QBCCMCmr 18 (14 January 2010)