'Wharton Palms' BUP 104235 [2011] QBCCMCmr 229 (30 May 2011)

Last Updated: 14 July 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	‘Wharton Palms’ BUP 104235 [2011] QBCCMCmr229
PARTIES:	Alice Kissick (applicant) Cyril and Kaye Clyma (respondents)
SCHEME:	‘Wharton Palms’ BUP 104235 CTS 16098
JURISDICTION:	Sections 227(1)(a) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0331-2011
DECISION DATE:	30 May 2011
DECISION OF:	May Tsui, Adjudicator
CATCHWORDS:	CONSENT ORDER - Appointment of administrator Act ss252I, 276(5) & 301

ORDERS MADE:

I hereby order, by consent that: (1) Strata-Jem Pty Ltd (PO Box 10820, Southport QLD 4215) is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of the Body Corporate for ‘Wharton Palms’ BUP 104235 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 the close of the meeting ordered. (3) 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. (4) The administrator must give at least fourteen (14) days written notice inviting owners to submit motions for inclusion on the agenda of the meeting. (5) Except as otherwise provided for in this order, the meeting 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 (“Standard Module”), and that the agenda of the meeting must include motions properly submitted and the filling of executive member positions of the committee (in accordance with section 13(5) of the Standard Module). (6) Payment of the administrator’s costs in fulfilling the appointment shall be shared equally between the two lots. (7) For the purposes of determining the future financial year of the Body Corporate for ‘Wharton Palms’ BUP 104235, 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.

REASONS FOR DECISION

Preliminary details

_[1] ‘Wharton Palms’ BUP 104235 was established as a community titles scheme on 9 May 1996 and consists of two lots and common property.
_[2] The applicant, Ms Alice Kissick is the owner of lot 2 and made this application on 12 April 2011 under the dispute resolution provisions of the Act. Ms Kissick sought an order for the appointment of an administrator to hold a general meeting for the body corporate. Ms Kissick says that this is needed as no action has been taken or records kept in relation to the body corporate since registration of the scheme, as required by the legislation.
_[3] The commissioner considered this matter appropriate for conciliation and upon the parties’ agreement, referred the application to department conciliation.[1] At conciliation, the parties reached an agreement in relation to the dispute and consented to their agreement being referred to an adjudicator for a consent order.[2] On 26 May 2011, a conciliation certificate was issued and the matter was referred back to the commissioner who in turn referred the agreement to me to make a consent order.[3]

Jurisdiction

_[4] I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[4]
_[5] 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. In particular, section 276(5) provides that an adjudicator may make a consent order, but the order may include only matters that may be dealt with under this Act, and must not include matters that are inconsistent with this Act or another Act.
_[6] 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[5] 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.[6]
_[7] An administrator appointed by an adjudicator has the powers given to the administrator under the order.[7] Section 301(4) of the Act provides that the order may:

1. withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and
2. require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and

100. fix the administrator’s remuneration.

Determination

_[8] The conciliation agreement between the parties stated that:

1. Each party to this application consents to this agreement being referred to an adjudicator for a consent order to be made; and
2. Each party consents to a declaration that Strata-Jem Pty Ltd be appointed as an administrator for ‘Wharton Palms’ for a period not exceeding 3 months. The cost of the appointment will be $1320.00 shared equally between the two lots. The administrator is to call, hold and chair an annual general meeting with the purpose to consider motions included in the agenda of the meeting and deciding committee executive member positions. The administrator is to give at least 14 days written notice inviting owners to submit motions for inclusion on the agenda for the meeting; and
3. Each party consents to a declaration that the end of the financial year for the body corporate be changed to the last day of the month preceding when the annual general meeting is held.

_[9] I am satisfied that the terms of the conciliation agreement are able to be dealt with under the Act and I have no evidence that the agreed terms are inconsistent with the Act or any other legislation. Accordingly, I have made a consent order. The terms of the order are consistent with but not identical to the wording in the conciliation agreement. I have termed the order in such a way to give proper effect to the agreement between the parties.
_[10] All parties should be aware that a consent order may be enforced in the Magistrates Court in same manner as any other order of an adjudicator[8] but, unlike other adjudicator’s orders, a consent order cannot be appealed[9].

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[1] Section 248 of the Act
[2] Section 252I(4) of the Act
[3] Section 252H(1) & 252I(5) of the Act
[4] Sections 227, 228, 276 and Schedule 5 of the Act
[5] Item 6 of Schedule 5 to the Act
[6] Item 23 of Schedule 5 to the Act
[7] Section 301(2) of the Act
[8] Section 287 of the Act
[9] Section 289(1)(b) of the Act