Number Thirty-Three [2010] QBCCMCmr 369 (13 August 2010)

Number of Scheme:	437
Name of Scheme:	Number Thirty-Three
Address of Scheme:	33 Macrossan Street PORT DOUGLAS QLD 4877

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

I hereby order that Body Corporate Services is appointed as Administrator to bring the affairs of the body up to date and to call, hold, and chair an annual general meeting within 3 months from the date of this order. The Administrator shall hold the appointment for the period beginning on the date of this order until the close of the annual general meeting.

I further order that for the purposes of calling and chairing the meeting, the Administrator shall have all the powers of the Chairman, Secretary, Treasurer and Body Corporate Committee.

Number Thirty-Three community titles scheme consists of four lots and common property. The community management statement indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme. Department of Environment and Resource Management records show the scheme is registered as Building Unit Plan 71199.

Pursuant to the Body Corporate and Community Management Act 1997, this application was made by Allan and Janice Robertson, the Owners of lots 2, 3 and 4. The outcome sought is to appoint Body Corporate Services as administrator for a period of 3 months to ensure that the body corporate complies with its statutory responsibilities.

The applicants state that they would like to see Body Corporate Services appointed as manager for the scheme so that the affairs of the body corporate are conducted in accordance with the current legislation and the records of the scheme are brought up to date.

The applicants state that they have written to the owner of lot 1 suggesting that it is necessary to ensure that the books and records of the scheme are brought up to date and in compliance with the BCCM Act. As examples of matters requiring attention the applicants state that the level of insurance coverage has not been reviewed for 15 years, invoices are not issued in respect of levies payable, receipts are not issued and the sinking fund is underfunded.

Attached to the application is a letter from Body Corporate Services dated 13 May 2010 agreeing to a 3 month appointment as administrator.

The owner of lot 1 has advised that he has no objection to the appointment of Body Corporate services as administrator for a period of 3 months to ensure that the body corporate is complying with its statutory responsibilities, provided that the owner of the other lots pays outstanding body corporate levies. The owner of lot 1 also advises that he believes that the affairs of the body corporate have now been brought up to date and apart from unpaid levies, the only outstanding matter as at 8 June 2010 was the taxation return for 2009 / 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 about:

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about - the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

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:

This application relates to proper administration of the Body Corporate and the applicants assert that there is a need to appoint an administrator for a period to ensure that the Body Corporate complies with legislative requirements.

The issue for my consideration in this matter is whether an administrator should be appointed and if an appointment is made, who should be appointed and how long the appointment should be for.
A three-month appointment of an administrator to bring the affairs of the body corporate up to date and conduct a general meeting is common where a body corporate has ceased to hold annual meetings, or meetings have not been validly conducted, or there is a question as to whether there is a committee that is able to call a general meeting.

While I note that this body corporate has been able to operate informally for a number of years, I also note that annual general meetings have not been held, certain levies have not been paid and there is some doubt as to the adequacy of the sinking fund.

For the above reasons, I consider it appropriate to order the appointment of Body Corporate Services as administrator for a period of three months for the purposes of bringing the affairs of the body corporate up to date and convening an Annual General Meeting. At that meeting lot owners may wish to consider the appointment of a body corporate manager to ensure that the body corporate continues to meet its statutory obligations.

[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

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Number Thirty-Three [2010] QBCCMCmr 369 (13 August 2010)