Dee-Ell [2010] QBCCMCmr 54 (9 February 2010)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Perpetual Trustee Company Limited, the mortgagee in possession of Lots 1, 2 and 3

I hereby order that -

(1) Strata Care Pty Ltd (PO Box 1251, Fortitude Valley Qld 4006) is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Dee-Ell 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.

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 year of the Body Corporate for Dee-Ell, the end of the month preceding the month in which the meeting is held shall be deemed to be the end of the financial year.

Dee-Ell community titles scheme 35408 (Dee-Ell) consists of four lots and common property. The scheme’s community management statement indicates the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Perpetual Trustee Company Limited, the mortgagee in possession of Lots 1, 2 and 3 (applicant) on 3 December 2009 seeking a declaratory order in the following terms:

That the Commissioner orders Archers Body Corporate Management Pty Ltd to convene a General Meeting of the Body Corporate and that the meeting be deemed the First Annual Meeting of the Body Corporate.

The applicant has provided a written consent to the orders sought from each of the other four owners in the scheme.

In the first instance clarification of several aspects of the application was sought from the applicant. The application was then amended in late December.

Under section 243 of the Act, a copy of the application was provided to the Owners of Lot 4 with an invitation respond to the matters raised by the application. In January 2010 the Owners of Lot 4 submitted a submissions cover sheet which provided no comment on the application. Our Office contacted Mr John Dalzeil to ask whether he wished to make any comment on the application. We subsequently received a further submission from the Owners of Lot 4 which included a copy of the by-laws for the scheme and a proposed budget. However again the submission made no comment on the application and did not indicate whether it supported or opposed the orders sought.

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[1]

While a titles search indicates that the registered owner of lots 1, 2 and 3 is Cedar Groves Estates Pty Ltd, I am satisfied from the information provided that the applicant is the mortgagee in possession of these lots. The definition in Schedule 6 of an owner of a lot includes a mortgagee in possession of a lot. Therefore, as the applicant falls within the definition of an owner of a lot for the purposes of the Act, it is a proper party to a dispute pursuant to section 227 of the Act.

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 community management statement, or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement.

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 community management statement 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:

Dee-Ell was established when it was registered in mid 1996. The application indicates that the first Annual General Meeting (AGM) for the scheme has not been held.

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) six 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, 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 (section 77(4)). 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.

It is apparent that the original owners of the scheme has not called the first AGM as required under the legislation, not withstanding that they sold three of the four lots over two years ago. Accordingly it is appropriate for an order to be making appointing an administrator to conduct the first AGM.

The applicant has nominated Stratacare for appointment as administrator. Stratacare have consented to the appointment and quoted a fee of $150 per hour plus GST and disbursements. The Owners of Lot 4 have not objected to this appointment. Accordingly I will make an order appointing Stratacare for this purpose.

[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

Number of Scheme:	35408
Name of Scheme:	Dee-Ell
Address of Scheme:	17 Anne Avenue BROADBEACH QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Dee-Ell [2010] QBCCMCmr 54 (9 February 2010)