Westminster House Annerley [2011] QBCCMCmr 37 (8 February 2011)

Number of Scheme:	24167
Name of Scheme:	Westminster House Annerley
Address of Scheme:	52-64 Dudley Avenue ANNERLEY QLD 4013

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Westminster House Annerley

I hereby declare that an annual general meeting of the Body Corporate for Westminster House Annerley for 2010 will not be invalid simply because it is held more than three months after the end of the financial year of the Body Corporate, providing that it is held by 31 March 2011.

I further order that the Committee for the Body Corporate for Westminster House Annerley is authorised to call and conduct the annual general meeting for 2010, notwithstanding that the legislative timeframe for the meeting has expired.

I further order that the Body Corporate for Westminster House Annerley include a copy of this order and statement of reasons with the notice of meeting.

Westminster House Annerley community titles scheme 24167 (Westminster House Annerley) consists of 17 lots and common property. The community management statement (CMS) for Wynyard Estate indicates that the Body Corporate and Community Management (Accommodation) Regulation 2008 (Accommodation Module) applies to the scheme.

Under the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Westminster House Annerley (applicant) on 7 February 2011, pursuant to a resolution passed outside a committee meeting on 3 February 2011.

That the body corporate be granted an extension of time to hold the 2010 Annual General Meeting until 31st March 2011.

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:

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(i) the engagement of a person as a body corporate manager or service contractor; or

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]

Section 64 of the Accommodation Module provides that an annual general meeting (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 applicant advises that the end of the financial year for Westminster House Annerley is 30 September. Accordingly, the AGM should be held by 30 December each year.

The Committee says that the Owners of Lot 17 submitted motions for its consideration, which the Committee determined should be put to the AGM. The process of making this decision was time-consuming, and included the need to obtain legal advice and delays in responses from the Owner of Lot 17 to responses to certain queries.

The Committee also says that the process of finalising the agenda for the AGM was affected by the Christmas/New Year period, including the absence of some committee members, the Body Corporate’s solicitor, and the body corporate manager. Finally, the Committee say the situation was exacerbated by the Brisbane floods.

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[4]. Moreover, it is clearly not possible for the 2010 AGM to now be held within the legislative timeframe.

In the circumstances I am satisfied that it is appropriate to make an order the 2010 AGM will not be invalid simply because it is not held until 31 March 2011. I note that, if the agenda for the AGM is now finalised and the notice of meeting is ready to be issued, the AGM could be held considerably sooner than 31 March[5]. Therefore while I have provided until 31 March for the meeting to be held, as requested, I would encourage the Committee to convene the meeting as soon as reasonably practical.

To avoid any doubt, I have authorised the current Committee to call and convene the AGM. To ensure that all owners are aware of the circumstances involved, I have also required that this order and reasons be circulated to all owners with the notice of meeting.

If the Body Corporate has a general difficulty in arranging its AGM because of the timing of the end of the financial year, and the resulting need to conduct the AGM during the Christmas/New Year period, it could consider passing a general meeting resolution to request an order changing to the financial year end date, pursuant to section 283 of the Act.

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

[5] Pursuant to section 72 of the Accommodation Module, a general meeting must be held at least 21 clear days after notice of the meeting is given.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Westminster House Annerley [2011] QBCCMCmr 37 (8 February 2011)