Aqua [2010] QBCCMCmr 309 (9 July 2010)

Number of Scheme:	32590
Name of Scheme:	Aqua
Address of Scheme:	300 Marine Parade LABRADOR QLD 4215

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 Aqua called and held by 31 August 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 current Committee for the Body Corporate for Aqua is authorised to call and conduct the annual general meeting for 2010.

The Aqua community titles scheme 37454 (Aqua) consists of 104 lots and common property. The community management statement (CMS) for Aqua 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 Aqua (applicant) on 7 July 2010, pursuant to a resolution passed at a committee meeting on 15 June 2010. The applicant sought a declaratory order in the following terms:

The Body Corporate Committee for Aqua is seeking a four (4) week extension on the Annual General Meeting Date. That is, an Annual General Meeting held as soon as possible but not later than Tuesday 31 August 2010 (when the Body Corporate Financial Year End falls on 30 April 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 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 30 April, and so the AGM must be held by 31 July each year. In this instance the application advises that this timeframe will be exceeded due to additional investigations required prior to the calling of the AGM. Accordingly, they seek an extension of four weeks 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]

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. 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

Aqua [2010] QBCCMCmr 309 (9 July 2010)