Chalons Field East [2010] QBCCMCmr 319 (9 July 2010)

I hereby order that Gold Coast Body Corporate Specialists of 126 Scarborough Street, Southport (the appointee) is appointed body corporate manager of the Chalons Field East body corporate for the period beginning on 12 July 2010 and ending on 30 September 2010 or at the end of the annual general meeting that must be held by 30 September 2010 (whichever is the earlier).

I further order the appointee is appointed for the purposes of calling the annual general meeting that must be held by 30 September 2010 and any other tasks as directed by the committee including paying invoices and issuing any levies.

I further order that the appointee:

Shall not further delegate any powers, authorities, duties and functions to another person; or make any decision on a restricted matter within the meaning of section 46 of the Building Units and Group Titles Act 1980.
Shall not incur expenditure other than expenditure reasonably necessary to comply with this order and which, in any one case, is not beyond that prescribed by section 47 of the Building Units and Group Titles Act 1980.

Application
Chalons Field East body corporate was created by the registration of Group Titles Plan 107017 under the Building Units and Group Titles Act 1980 (s 27(1), BUGT Act). The Plan subdivided a secondary lot within a residential precinct of the Royal Pines Resort, an approved scheme under the Integrated Resort Development Act 1987.

This application is by the Body Corporate seeking the appointment of Gold Coast Body Corporate Specialists for the period commencing on 12 July 2010 until the annual general meeting for the purposes of calling the annual general meeting and any other tasks as directed by the committee including paying invoices and issuing any levies.

The Body Corporate provided a copy of the record of voting in writing by two members of the committee approving making this application and appointing Hynes Lawyers to make the application. A committee decision is a decision of the body corporate (s 46(2), BUGT Act).

It also provided a letter dated 28 June from Michael Groves of Gold Coast Body Corporate Specialists agreeing to act as the body corporate manager from 12 July until the Body Corporate holds its annual general meeting.

The Body Corporate states Stewart Silver King and Burns by letter dated 10 June 2010 notified the Body Corporate that it would cease to perform the role of body corporate manager as at 12 July 2010. The Body Corporate provided a copy of the letter from SSKB terminating the agreement and stating the Body Corporate books and records will be ready for collection on 12 July 2010.

The Body Corporate states its annual general meeting must be held between 1 July and 30 September and will be held in August 2010 (it has stated the meeting is scheduled for 19 August 2010). It says there will be a gap of approximately four to six weeks when it will not have a body corporate manager and it needs a manager at all times to fulfil its statutory duties and to avoid significant disruption to its administration. The Body Corporate submits it will have serious difficulty calling the annual general meeting without a manager. It says it is not feasible for a volunteer committee member to perform the tasks required from a body corporate manager, it is unlikely that any committee member is willing to take any part of a manager’s role, and it is not possible to leave payments and the calling of levies until the annual general meeting is held.

In referring to section 50 of the BUGT Act, the Body Corporate states it can only engage a body corporate manager at a general meeting and it cannot call an extraordinary general meeting for this purpose as there will be time when there would not be a manager.

Decision
A body corporate manager shall not be appointed otherwise than by the body corporate or a referee (s 50(8), BUGT Act). A body corporate may appoint a manager in general meeting (s 50(1), BUGT Act). Section 94 of the BUGT Act makes provision for a referee making an order appointing a body corporate manager to exercise or perform certain powers.

A referee may, where a duty is otherwise imposed by the BUGT Act on a body corporate, or on the chairperson, secretary or treasurer of a body corporate or of the committee of a body corporate or on that committee, appoint a body corporate manager (being a person who has consented in writing to the appointment) to perform that duty and any other duty specified in the order (s 94(1), BUGT Act). A referee who appoints a body corporate manager may also order that the body corporate manager shall have and may exercise and perform all of the powers, authorities, duties and functions of the body corporate for the parcel to which the order relates or of the chairperson, secretary or treasurer of that body corporate or the committee of that body corporate; any 1 or more of those powers, authorities, duties or functions specified in the order; or all of those powers, authorities, duties and functions except those specified in the order (s 94(2), BUGT Act).

Where a referee makes an order appointing a body corporate manager, no person other than the body corporate manager appointed by the order may, while that body corporate manager holds office as such, exercise or perform any power, authority, duty or function which the body corporate manager is authorised to exercise or perform by the order (s94(3), BUGT Act). The appointment of a body corporate manager may be made upon such terms and conditions as the referee specifies in the order making the appointment (s 94(4), BUGT Act).

The primary purpose of the proposed appointment is to call the forthcoming annual general meeting. An annual general meeting of a body corporate shall be held in each year on or after the anniversary of the first annual general meeting but not later than 2 months after that anniversary s 29A, BUGT Act). This meeting is integral to the management of a body corporate as consideration is given to: reviewing the past financial year’s income and expenditure, considering future spending needs through the adoption of an administration fund budget and a sinking fund budget; fixing contributions to be paid by lot owners; determining whether the next financial year’s accounts should be audited; and electing a committee.

Given submissions, there is a distinct possibility that this meeting may not be called in accordance with the requirements of the BUGT Act if the Body Corporate does not have the services of a body corporate manager. This would leave the legal status of the Body Corporate in doubt, as well as the validity of any decisions purportedly passed at an annual general meeting. This would clearly not be in the interests of owners.

Given the stated timeframes, I am satisfied it is appropriate to seek the appointment of a body corporate manager by order under section 94 rather than the Body Corporate convening an extraordinary general meeting for this purpose. In effect, the proposed appointment replaces the manager that would seem to have been engaged by the Body Corporate in general meeting. In the circumstances, it would seem the appointment would minimise the impact the resignation of SSKB would have on the administration of the Body Corporate.

Given the stated circumstances, I consider it is appropriate to make an order limited to the terms sought. Gold Coast Body Corporate Specialists has consented to a restricted appointment. I have no reason to believe the committee has not acted in good faith in this matter and that it has sought an order to ensure the Body Corporate continues to be administered in accordance with the BUGT Act until such time as matters can be considered in general meeting.

Name of Plan:	Chalons Field East
Number of Plan:	Group Titles Plan 107017

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Chalons Field East [2010] QBCCMCmr 319 (9 July 2010)