Shafston University Mansions [2010] QBCCMCmr 47 (5 February 2010)

Number of Scheme:	29747
Name of Scheme:	Shafston University Mansions
Address of Scheme:	9 Castlebar Street KANGAROO POINT QLD 4169

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

I hereby order that the committee of the body corporate for Shafston University Mansions must ensure that its 2009 annual general meeting is held by no later than the end of March 2010.

I further declare that a 2009 annual general meeting held by the body corporate for Shafston University Mansions by the end of March 2010 will not be invalid simply because it is held more than three months after the end of financial year of the body corporate.

Shafston University Mansions Community Titles Scheme (Shafston) is a 174 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application in the name of the body corporate for Shafston, lodged with the authority of the committee. The application seeks that the body corporate be granted an extension of time in which to hold its annual general meeting.

The provisions of the Accommodation 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]

Obviously, it is preferable that annual general meetings be held within three months of the end of financial year as required by the legislation (Accommodation Module, 64). However, the objects of the Act include providing flexible and contemporary communally based arrangements for the use of land and recognise self management as an inherent aspect of community titles scheme (Act 2, 4). Courts have recognised that the very detailed provisions of the applicable regulations make it almost inevitable that there will be failures to comply with the regulations from time to time[2] and courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result.[3] An annual general meeting serves an important function in the decision making of the body corporate, the setting of budgets, and the election of committee members. It would appear to be contrary to the intention of the legislation to take a view that a short delay in calling an annual general meeting might mean that a valid annual general meeting could not be held at all.

Unexpected delays can impact on the calling of an annual general meeting. In the case of unavoidable or unexpected delays it is understandable that the annual general meeting may be held a couple of months late. I note a number of submissions that are critical of the committee and I accept that it may well be the case that the committee failed to take appropriate steps to ensure the meeting could be held on time. However, I also accept that the auditor’s report required corrections and was not available in its final form until 11 December 2009. Given the requirement that the body corporate give owners 21 days notice of a meeting and the difficulty in holding a meeting in the period between Christmas and New Year it is understandable that the meeting could not be held within the legislative time limit.

I understand that there is still a functioning committee notwithstanding the failure to call an annual general meeting on time.[4] Submissions from the secretary indicate that some of these committee members may wish to further delay the meeting as a result of some other disputes. I do not accept that there is any good reason for the committee to further delay the annual general meeting. In these circumstances I consider it is appropriate to order that the committee ensure the annual general meeting is held by the end of next month. Provided this is done, I am prepared to make a declaration that the annual general meeting will not be invalid merely because it is held late.

[1] Refer Johnson v Beitseen (1989) 41 IR 395 at 415. As to ascertaining the intention of the legislature in circumstances that would traditionally be described as ascertaining whether rules are mandatory or merely directory, see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at paragraphs 91 to 93. Note that section 242 of the Act effectively deems a meeting to be valid if there is no challenge to the validity of the meeting within the appropriate time limit. Also, as section 72 of the Standard Module, section 70 of the Accommodation Module and section 39 of the Commercial Module specifically provide an action is void for failure to comply with those sections, it may be implied that non-compliance with other sections will not automatically render the resulting resolutions void in the absence of a similar explicit statement.
[2] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.
[3] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at paragraph 97.
[4] Refer to section 33 of the Accommodation Module for when the term of office of a committee member will cease.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Shafston University Mansions [2010] QBCCMCmr 47 (5 February 2010)