181 The Esplanade [2000] QBCCMCmr 273 (13 June 2000)

C G YOUNGREFERENCE: 0306-2000

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 Insutrances Pty Ltd, owner of Lot 32,


C G YOUNGI hereby order that the application for an interim order declaring that Anne Maxwell: has not been properly authorised to act as a Letting Agent for the scheme and that any agreement with the body corporate to that effect is void; has not been granted an occupation authority over any common property; has no right to the exclusive use of, or other special rights in respect to, common property or any body corporate asset; cease carrying on business as a Letting Agent for the scheme, is dismissed. 2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0306-2000

“181 The Esplanade” CMS 518

The applicants, Dennis Terracini of Lot 26 and 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 Anne Maxwell has not been authorised to act as a Letting Agent for 181 The Esplanade Community Titles Scheme 518 (“the Scheme”) pursuant to the resolution of the Body Corporate made at the Extraordinary General Meeting held on 14 April 2000, numbered 4 in the Minutes for that meeting, or otherwise.

2. Declaration that any written agreement entered into between the Body Corporate and Anne Maxwell, authorising Anne Maxwell to act as a Letting Agent for the Scheme, in reliance upon the resolution referred to in order (a) above is void.

3. Declaration that Anne Maxwell has not been granted an occupation authority in respect of any common property.

4. Declaration that Anne Maxwell does not have any right to the exclusive use and enjoyment of, or other special rights about any common property or Body Corporate asset.

5. That Anne Maxwell cease carrying on business as a Letting Agent within the Scheme Land.

The applicants have 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.

In the grounds to the application, the applicants submit that the business activities of Maxwell arise out of a resolution passed at an extraordinary general meeting held on 14 April 2000 and that she commenced these activities on or about 29 April 2000. In my opinion there is no aspect of urgency associated with this application that requires an interim order be made. Moreover, the nature of the matters raised are not such that they can be effectively addressed or dealt with by way of an interim order. The application concerns a valuable commercial business, caretaking of the scheme property and the letting of lots in the building, which requires a careful and thorough examination of the circumstances before a determination is made.

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