Calypso Plaza On Coolangatta [2011] QBCCMCmr 159 (13 April 2011)

Number of Scheme:	24595
Name of Scheme:	Calypso Plaza on Coolangatta
Address of Scheme:	Cnr Marine Parade & McDonald Street COOLOONGATTA QLD 4225

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate Committee for Calypso Plaza on Coolangatta

I hereby declare that an annual general meeting of the Body Corporate for Calypso Plaza on Coolangatta held by 31 May 2011 will not be invalid simply because it is held more than three months after the end of the financial year of the Body Corporate.

I further order that the Committee for the Body Corporate for Calypso Plaza on Coolangatta is authorised to call and conduct the annual general meeting, notwithstanding that the legislative timeframe for the meeting has expired.

This application is essentially seeks a declaratory order authorising the Body Corporate to hold its Annual General Meeting (AGM) outside of the legislative timeframe.

Calypso Plaza on Coolangatta community titles scheme 24595 (Calypso Plaza) consists of 220 lots and common property. The community management statement (CMS) for Calypso Plaza indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module) applies to the scheme.

This application was lodged under the Body Corporate and Community Management Act 1997 (Act) by the Committee for the Body Corporate for Calypso Plaza (applicant) on 6 April 2011. The lodging of the application, and the proposal to defer the AGM, was authorised by a resolution passed outside a Committee meeting on 27 March 2011.

That the Annual General Meeting for Calypso Plaza CTS 24595 to be held on the 25 May 2011 will not be declared invalid simply because it is held more than three months after the end of the financial year of the Body Corporate.

The Annual General Meeting has been exceeded due to delays involved in finalising motions for major expenditure regarding replacement and obtaining quotes.

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

An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute 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; or 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.[2]

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

Section 64 of the Accommodation Module provides that an AGM must be called and held within three months after the end of each of the scheme’s financial years. Time limits are placed on the period within which an AGM is required to be held for a number of reasons, including accountability and accessibility to information regarding the operation of the scheme.

The application states that the end of the financial year for this scheme is 31 January, and so the AGM must be held by 31 April in each year.

In this case it seems that delays have arisen in obtaining quotes and finalising motions for major expenditure regarding the replacement of elevators in the scheme. Accordingly, the Committee would like to defer the AGM until 25 May 2011.

Obviously it is preferable that an AGM be held within the prescribed timeframe, and a body corporate should make every effort to ensure that this timeframe is complied with. However, the courts have recognised that the very detailed provisions of the regulations make it almost inevitable that from time to time there will be non-compliance with the legislation. In particular the courts have commented that non-compliance of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken in good faith.[5] In this case the delay is not significant. Moreover, it is now not possible for the 2011 AGM to now be held within the legislative timeframe.

In the circumstances I am satisfied that it is appropriate to make an order the AGM will not be invalid if it is held by 31 May 2011, an extension of up to one month, although it appears that the Committee intends to hold the meeting on 25 May. To avoid any doubt, I have authorised the current Committee to call and convene the meeting.

To avoid any confusion for owners, I would encourage the Committee to notify owners (for example, in the notice of meeting) that the delay in holding the meeting has been authorised by this order.

[5] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (Unreported).

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Calypso Plaza On Coolangatta [2011] QBCCMCmr 159 (13 April 2011)