181 The Esplanade [2000] QBCCMCmr 271 (8 June 2000)

C G YOUNGREFERENCE: 0292-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	518
Name of Scheme:	181 The Esplanade
Address of Scheme:	181 The Esplanade CAIRNS QLD 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Dennis Howell TERRACINI, owner of Lot 26, and Integrity Insurances Pty Ltd, owner of Lot 32,


C G YOUNGI hereby order that the application for an interim order declaring that 2yDonald John Graham did not have the authority of the body corporate to engage Williams Graham & Carman, Solicitors, to provide certain legal services, and further that he be ordered to reimburse the body corporate in the amount of one thousand seven hundred and forty dollars ($1,740) paid for such services, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0292-2000

“181 The Esplanade” CMS 518

The applicants, Dennis Terracini of Lot 26 Integrity Insurances Pty Ltd of Lot 32, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1. Declaration that Donald John Graham had no authority to engage Williams Graham & Carman Solicitors of 12 Aplin Street, Cairns, Queensland 4870 on behalf of the Body Corporate to provide the services detailed in the accounts of Williams Graham & Carman dated 2 March 2000, 27 March 2000, 20 April 2000 and 15 May 2000 addressed to the Body Corporate.

2. That Donald John Graham pay to the Body Corporate the sum of $1,740.00 being the amount paid by the Body Corporate to Williams Graham & Carman in respect of their account dated 27 March 2000.

3. Such further order as the Adjudicator deems fit.

The applicant has also applied for an identical interim order.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 225(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be refused, in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances. However, given that an interim order may be made ex parte (ie. without reference to, or submission from the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be refused. It is a matter for an adjudicator to determine in respect of each application.

There is no aspect of urgency associated with this application that warrants the making of an interim order. It concerns the recovery of a sum of money (less than $2,000) from a committee member and owner. The body corporate has already paid the money and there is no evidence that the body corporate is in financial distress as a result or that the sum may not be recoverable at a future time.

Accordingly, this application for an interim order is refused. The matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.2y