South Station Road [2010] QBCCMCmr 239 (28 May 2010)

Last Updated: 9 June 2010

REFERENCE: 0488-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23191
Name of Scheme:	South Station Road
Address of Scheme:	129 South Station Road SILKSTONE QLD 4305

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

Ms Norelle Smith, the Owner(s) of lot 1

I hereby order that - (1) Beverly Joan Duce of Duce Management Services is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for South Station Road within three (3) months of the date of this order. (2) The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered. 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 the first annual general meeting of the Body Corporate for South Station Road. I further order that for the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of the 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; or - to incur any expenditure apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation. I further order that the meeting shall be called and held in accordance with the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the ‘Standard Module’), and that the agenda for the meeting must include the items stated in section 77(3) of the Standard Module and may also include any other motion properly submitted. I further order that for the purposes of determining the future financial years of the Body Corporate for South Station Road, 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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0488-2010

“South Station Road” CTS 23191

South Station Road community titles scheme 23191 (South Station Road) consists of 2 lots and common property. The scheme’s community management statement (CMS) indicates the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme.

APPLICATION

This application was made by Norelle Smith, Owner of Lot 1 (applicant) on 24 May 2010 under the Body Corporate and Community Management Act 1997 (Act). The application seeks a declaratory order in the following terms:

That Beverly Joan Duce of Duce Management Services be appointed to enable them to convene the first general meeting for the Body Corporate.

PROCEDURAL MATTERS

Included in the application is a letter from Victor Hahn and Dyanne Martha Mavis Hahn, the Owners of Lot 2, consenting to the appointment of Beverly Joan Duce of Duce Management Services as administrator for the scheme, to convene the first general meeting of the body corporate. Accordingly, as all lot owners consented to the outcome sought in the application, there was no need to distribute the application for submissions, pursuant to section 243 of the Act. A dispute resolution recommendation was then made referring the matter to departmental adjudication.

JURISDICTION

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 a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers, or the performance of duties, under the Act or the CMS.

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]

Specifically, and without limiting the power to make an order under section 276(1), an adjudicator may order the body corporate to call a general meeting of its members to deal with stated business or to change the date of an annual general meeting[4] or alternatively, the adjudicator may order the appointment of an administrator, and authorise the administrator to perform obligations of the body corporate, its committee, or a member of its committee under this Act or the CMS or the obligations of the body corporate under another Act.[5]

An administrator appointed by an adjudicator has the powers given to the administrator under the order.[6] Section 301(4) of the Act provides that the order may:

(a) withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and
(b) require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and
(c) fix the administrator’s remuneration.

DETERMINATION

South Station Road Body Corporate was established when it was registered in mid 1995. The application indicates that there is no record of any annual general meeting (AGM) having been held in the scheme.

Section 77 of the Standard Module provides that the original owner must call and hold the first AGM of a body corporate within two months after the first of the following:

(a) more than 50% of the lots included in the scheme are no longer in the ownership of the original owner;

(b) 6 months elapse after the establishment of the scheme.
The agenda for the meeting must include the items set out in section 77(3) of the Standard Module.

If the original owner does not call and hold the first AGM as required by the section, section 77(4) of the Standard Module provides that the order of an adjudicator under the dispute resolution provisions may include an order appointing a person to call the first AGM within a stated time. The purpose of such an order is to re-establish the body corporate and to facilitate the Body Corporate conducting its affairs in accordance with the legislation.

The applicant has nominated Beverly Joan Duce of Duce Management Services for appointment as administrator. Correspondence in the file from Ms Duce dated 4 May 2010, indicates that Ms Duce consents to any appointment as administrator.

In the circumstances, I am satisfied that an order should be made for the appointment of Beverly Joan Duce, of Duce Management Services, as administrator to call and hold the first AGM in order to put the Body Corporate for South Station Road on a proper legal basis. I have also made an order setting the future financial year end date for the scheme relative to the date of the first AGM.

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[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] See Item 6 of Schedule 5 to the Act
[5] See Item 23 of Schedule 5 to the Act
[6] See section 301(2) of the Act