181 The Esplanade [2000] QBCCMCmr 393 (1 August 2000)

C G YOUNGREFERENCE: 0310-2000

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

Aninoxlo Pty Ltd ACN 010 888 856, owner of Lot 34,



C G YOUNGI hereby order that the application for an interim order that 2nthe committee meeting held on 21 April 2000 be declared void and that Cairns Body Corporate Management Pty Ltd continue as the Body Corporate Manager to the body corporate, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0310-2000

“181 The Esplanade” CMS 518

The applicant, Douglas J Jones as representative for Aninoxlo Pty Ltd owner of Lot 34, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

(a) Declaration that the meeting of the committee for the Body Corporate held on 14 April 2000 and all resolutions passed at that meeting are and were at all times void for irregularity.

(b) That Cairns Body Corporate Management Pty Ltd continue to act as Body Corporate Manager for the Body Corporate on the same terms and conditions contained in the Management Agreement between the Body Corporate and Cairns Body Corporate Management Pty Ltd dated 1 June 1996 except as to term, until an alternate Body Corporate Manager is engaged by the Body Corporate pursuant to a resolution of the Body Corporate in General Meeting.

(c) Such further order as the Adjudicator deems fit.

The applicant has also made application for interim orders in the same terms.

Section 223(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)	a claimed or anticipated contravention of the Act or the community management statement; or
(b)	the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
(c)	a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

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.

This is another in a series of applications for this scheme. I have recently made final orders in respect of three other applications, Application Ref. No’s. 291-2000, 292-2000 and 359-2000. This matter is related to those three to a certain extent and was held over pending their prior determination. A further application Ref. No. 306-2000 remains for determination.

After having made Orders 291, 292 and 359-2000, it seems to me that the first part of the order sought in this application, the voiding of a committee meeting held on 14 April 2000, is of no further relevance to the dispute between the two owner factions. As well, I do not have all of the evidence necessary to make a decision in this matter which, if its determination was still relevant, I would otherwise have to obtain through additional documentary evidence and conducting a further teleconference with the parties. Of relevance is whether an attempt was made to reach Mr Jones concerning the meeting, and, in particular, whether a notice of the resolutions purportedly passed was served on owners to enable them the opportunity of considering a “notice of opposition” (see section 37 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”)).

I would say however, that from my reading of the minutes of the meeting there does not appear to have been a matter considered which would have constituted an “emergency” within the meaning of section 35 of the Standard Module. The term “emergency” must be given its plain meaning which, in the context of a community titles plan committee, would include such events as: a burst water pipe on the common property; engaging a contractor to make safe a collapsed wall; filing some claim, notice, application or the like which must be done within 7 days. None of the matters dealt with were of this nature. They could have been adequately dealt with after the normal period of notice for committee meetings.

The body corporate has in its submission to the application referred to its notice of committee resolutions dated 23 June 2000, including a resolution appointing a new Body Corporate Manager. I have dealt with this meeting of 21 June 2000 in my Order 359-2000 pointing out that the engagement was void.

In the circumstances I have dismissed part (a) of the order sought. If the applicant wishes to provide relevant information in a further application concerning the meeting, and there is a cogent reason for resolving the matter, then he may do so and the matter will be reconsidered.

In regard to (b), the second part of the order sought, I have also dismissed this part of the application in my order. In my Order 291-2000 I have ordered the previous committee to continue in office in replacement of the recently “elected” committee. It will be a matter for that committee to decide for itself how it will conduct its business. It has a duty under that same order to call an early extraordinary general meeting and it can do that either itself or by engaging assistance, providing that in doing so it acts within its powers and statutory limitations.

Accordingly, I do not intend to impose a service provider on the committee when it may make its own choices in the matter.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.
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