Bayview on Buderim [2010] QBCCMCmr 79 (22 February 2010)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Joseph and Denise Pilarski, Co-owners of Lots 2 and 12, Shane Argo, Owner of Lot 4, Paul Thompson, Owner of Lot 5, Amanda Rofe, Owner of Lot 7, Lois James, Owner of Lot 10

I hereby order that -

(1) Paul Thomson, Owner of Lot 5, is appointed as administrator to call, hold and chair an annual general meeting (‘the meeting’) of the Body Corporate for Bayview on Buderim 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 the meeting shall be deemed to be the annual general meeting of the scheme for 2010 and, unless otherwise provided for in this order, shall be called and held in accordance with the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the ‘Standard Module’).

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 agenda for the meeting must include the items stated in section 76(2) and 76(3) of the Standard Module, any other motion properly submitted, and the election of a committee.

I further order that the administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting and nominations for committee positions.

Bayview on Buderim community titles scheme 5015 (Bayview on Buderim) consists of 12 lots and common property. The scheme’s community management statement (CMS) indicates the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme.

This application was initially made by Paul Thompson, Owner of Lot 5 (applicant) on 22 January 2010 under the Body Corporate and Community Management Act 1997 (Act). Mr Thompson’s application sought a declaratory order in the following terms:

I have been an owner for 4 years in the complex Bayview on Buderim. There is no current committee and no meetings have been held since the collapse of the Committee ion 2006. I have not paid any levies and am extremely concerned.

I am notifying the BCCM Commissioners office of the owners intent to hold an AGN on Monday 22 February at 10:00am in my office at 155 Currie St Nambour QLD 4580.

We understand that we are required to give all owners a minimum of 21 days clear notice and would appreciate a response at your earliest convenience to allow the agendas to be distributed.

I would also like to add an outcome to the application that myself be appointed as the Administrator of the Body Corporate for the purpose of calling and holding the Annual General Meeting of the Body Corporate at 155 Currie Street, Nambour on 22 February 2010.

Applications in similar same terms (although not identifying an administrator to be appointed) were received from Amanda Rofe, Owner of Lot 7, Lois James, Owner of Lot 10, Joseph and Denise Pilarski, Co-owners of Lots 2 and 12, and Shane Argo, Owner of Lot 4.

Our Office contacted Mr Thompson and suggested that rather than each owner lodging a separate application, for simplicity they could each be co-applicants on a single application.

Under section 243 of the Act, a copy of Mr Thompson’s application was provided to the owners of each lot in the scheme, at their lot address, with an invitation to respond to the matters raised in the application. Although several owners had made applications, Mr Thompson’s application was distributed for comment on the proposal that he be appointed as administrator. Mr Pilarski then advised our Office of alternative mail or email addresses for three owners and the notice inviting submissions were resent to three owners. However, no submissions were received.

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

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 a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers, or the performance of duties, under the Act or the CMS.

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:

The application states that no meetings have been held in this scheme since 2006. The application suggests that there is no committee and no current levies. There is a desire amongst owners call an annual general meeting (AGM) and appoint a body corporate manager to assist in managing the scheme. No submissions have been made disputing these circumstances and the views in Mr Thompson’s applications are confirmed in the applications lodged by the other owners.

Section 60 of the Standard Module provides that an AGM must be called and held within three months after the end of a scheme’s financial year. In the apparent absence of an AGM for around four years, the Body Corporate is not currently operating on a proper legal footing.

There is no validly elected committee at present and so there is nobody currently authorised to call an AGM. Accordingly the appointment of an administrator is necessary to restart the Body Corporate. Paul Thompson has been nominated for this purpose and no owner has objected to this appointment.

In the circumstances, I am satisfied that an order should be made for the appointment of an administrator to call and hold a general meeting in order to put the Body Corporate for Bayview on Buderim on a proper legal basis. I have made orders giving owners the opportunity to submit nominations for committee positions and to submit motions for the agenda. If owners wish to submit a motion to appoint a body corporate manager they should have regard to the legislative requirements for such a motion. The administrator must also ensure that all statutory motions required to be considered at an AGM are included on the agenda.

I would encourage owners wishing to inform themselves as to their rights and responsibilities under the body corporate legislation, to contact the Information Service of the Commissioner’s Office. The Information Service provides a freecall 1800 060 119 information line, a range of factsheets forms and guides, seminars and online training. Much of this is online at www.justice.qld.gov.au/bccm . Thompson in particular may wish to contact the Information Service to seek information on the steps he must follow in calling and conducting the AGM.

[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:	5015
Name of Scheme:	Bayview on Buderim
Address of Scheme:	44 King Street BUDERIM QLD 4556

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Bayview on Buderim [2010] QBCCMCmr 79 (22 February 2010)