Royal Pines South Shields [2010] QBCCMCmr 8 (6 January 2010)

Last Updated: 18 March 2010

REFERENCE: 0689-2009

ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Plan:	Royal Pines South Shields
Number of Plan:	Group Titles Plan 2995
Address of Parcel:	380 Ashmore Road ASHMORE QLD 4214

TAKE NOTICE that pursuant to an application made under the Building Units and Group Titles Act 1980 by Michael Joseph and Jennifer Wakeham

I hereby order that the application by Michael Joseph and Jennifer Wakeham against The Proprietors Royal Pines South Shields Group Titles Plan 2995 to change the anniversary date for the annual general meeting and about the statement of accounts, is dismissed.

STATEMENT OF REFEREE’S REASONS FOR DECISION - 0689-2009

“Royal Pines South Shields” CTS 0

This application was made on 27 July 2009 by Michael Joseph and Jennifer Wakeham against the Body Corporate.

On 7 August 2009, I wrote to Mrs Wakeham stating:

“I refer to the above application for an order of a referee made under the Building Units and Group Titles Act 1980 (BUGT Act). Section 72 states: “Application for an order...shall be made to a referee in writing specifying the grounds on which it is made and the order sought ...” Section 73(1)(a) provides that a referee “may require the applicant to provide...such further information in relation to the application as, in the referee’s opinion, may assist the investigation of the application”.

The application made on 27 July 2009 sought two orders: that the committee cannot change the anniversary date which is 30 April and all annual general meetings must be held within two months of that date unless an application is made; and a statement of accounts for the financial year must be included with the nomination/motions when sending out a notice for an annual general meeting.

On 30 and 31 July 2009, you spoke to a member of the Commissioner’s office about the application. On 7 August 2009, you provided amendments to the application.

Firstly, it would seem you are seeking clarification or a ruling about the anniversary date for the purposes of the timing for holding an 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(1), BUGT Act). The first annual general meeting must be held within 3 months after the registration of the plan (s 29(1) and (3), BUGT Act). Group Titles Plan 2995 was registered on 5 June 1992 (it would seem the Plan was lodged for registration on 7 April 1992). Given the date of registration of GTP 2995, the first annual general meeting of the Body Corporate was required to be held within 3 months after 5 June 1992. The date of this meeting is relevant to the timing of subsequent annual general meetings; they shall be held not later than 2 months after this date.

The Body Corporate should have records of the first annual general meeting, including the minutes of the meeting (s 38D(1)(b), BUGT Act). Information of this nature is ascertainable from the Body Corporate under section 40 of the BUGT Act.

You have not provided any information about the first annual general meeting of your Body Corporate to support your contention that a date in April is the anniversary of the first annual general meeting. Given the information provided, further information is required on the order being sought with respect to the anniversary date and the grounds for making the application.

While the anniversary date may be varied by order of a referee under section 94A of the BUGT Act, an application under this section can only be made by a body corporate. While there is no record of such an application being made with respect to this Body Corporate, there is no basis for an owner to make an application under section 94A. You may wish to pursue this matter in relation to the forthcoming annual general meeting if there is evidence suggesting the meeting is proposed to be held, or held outside the prescribed timeframe. Section 38D(1)(d) provides a “body corporate shall cause annual general meetings to be convened in accordance with section 29A”.

Secondly, it would seem you raise questions about the presentation of a statement of accounts and that you refer to section 1(5) of part 2 of schedule 2 of the BUGT Act which states:

“(5) Every notice for an annual general meeting shall—

(a) be accompanied by a copy of the statement of accounts of the body corporate last prepared by the body corporate in accordance with section 38D(1)(c) of this Act and, where the accounts of the body corporate for that period are required by this Act to be audited a copy of a certificate by the auditor certifying whether the statement of accounts—

(i) is in agreement with the accounts; and

(ii) in the auditor’s opinion fairly sets out the financial transactions for the period to which it relates and shows a true and fair view of the state of affairs at the close of that period; and

(b) include a form of motion for adoption of those accounts; and

(ba) include a form of motion for the appointment of a qualified auditor to audit the accounts of the body corporate for the next ensuing financial year; and

(c) when necessary, be accompanied by a ballot paper for the election of candidates as chairperson, secretary and treasurer of the body corporate and as other members of the committee; and

(d) if no nomination is received for any such position prior to the closing date, contain advice that the position will be filled from nominations received from the floor of the meeting.”

There is nothing to suggest the Body Corporate has served a notice of annual general meeting on each proprietor. The Circular to Proprietors dated 24 June 2009 invites nominations for committee and motions for the annual general meeting; it is not the notice for the meeting. It is a notice the secretary must give to each proprietor inviting the proprietor to nominate individuals for election as chairperson, secretary, treasurer and other committee members of the body corporate 35 days before the anniversary of the first annual general meeting (s 1, part 1, schedule 2, Building Units and Group Titles Regulation 2008).

The notice of a general meeting must be served at least 7 days before the meeting (s 1(4), part 2, schedule 2, BUGT Act). Please provide further information on the relevance of section 1(5) of part 2 of schedule 2 of the BUGT Act to the order being sought.

You have asked the question: should not owners be supplied a copy of financials before the motion cut-off date? You have not referred to any legislative basis for the statement of accounts being given to proprietors other than in the notice of an annual general meeting. Please provide further information about this issue.

A referee has general powers to make orders under section 77(1) of the BUGT Act which states: “A referee may, pursuant to an application of a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel” (my underlining)

With respect to both issues raised the applicant needs to identify the basis of the dispute to be settled or the complaint to be rectified. If it is found that the annual general meeting is proposed to be held, or is held outside the prescribed timeframe, a proprietor may make an application disputing the holding of the meeting. If the meeting is held and prescribed material is not distributed, a proprietor may make an application questioning for example, the resolution passing the relevant motion/s.

You have also challenged the issuing of levies. The question about the levy for the period September 2009 to December 2009 is a matter to be determined. You have referred to a Body Corporate decision to change the due date for payment of levies. Please provide information about that decision?”
I asked that the requested information be provided within 14 days of the date of the letter. Subsequent to a request from Mrs Wakeham, I extended the time for providing the information to 30 September 2009. On 23 October 2009, I wrote to Mrs Wakeham stating (in part): “As the office had not received information from you by this date, on 2 and 8 October, a message was left on your voicemail. To date we have no record of any response to our requests. It would be appreciated if you could provide the further information requested on 7 August 2009 within 14 days of date of this letter. If you wish to withdraw the application, please advise the office in writing.” On 1 November 2009, Mrs Wakeham informed me that she only just received an emailed copy of the October letter. After subsequent communications, I extended the time to provide information to 9 December 2009.

To date, no further information has been provided. In my view, the failure to provide this information is significant given the nature of the orders sought. There is nothing to suggest any of the issues raised in the application relate to a dispute to be settled or a complaint to be rectified. I do not consider the application can be proceeded with. For these reasons, I have dismissed the application.