181 The Esplanade [2000] QBCCMCmr 441 (31 August 2000)

P J HANLYREFERENCE: 0481-2000

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 the Body Corporate for 181 The Esplanade CTS 518

I hereby order that Anne Maxwell shall be authorised to act as interim letting agent for 181 The Esplanade until such time as the body corporate holds the extraordinary general meeting ordered by the adjudicator in Application No: 0291-2000.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0481-2000

“181 The Esplanade” CMS 518

The applicant, the Body Corporate for 181 The Esplanade, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Declaration that Anne Maxwell is authorised to act as interim letting agent for 181 The Esplanade until such time as the extraordinary general meeting to be held pursuant to the order of the Adjudicator in relation to Application 0291-2000 is held.

The applicant has also sought an interim order of an adjudicator in the same terms.

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 the supporting grounds, the applicant states that the interim order is required as a matter of urgency to prevent significant financial detriment and damage to the goodwill arising in the period leading up to the extraordinary general meeting to be held pursuant to the interim orders made in Application No: 0292-2000. The applicant also provided background information as to the history of this scheme in recent times. In addition, the applicant provided copies of the signed consents of 26 of the 37 owners to the interim appointment of Anne Maxwell.

Under the powers delegated to me by the Commissioner (section 189 of the Act) I am satisfied that there is good reason for dispensing with the requirement to give written notice of this application to affected persons, and to invite written submissions about the application (sections 194(5) and 194(1)-(2) of the Act). I have made this decision because of the obvious need for a person to be appointed urgently to carry out the duties of a letting agent; because of the imminence of the extraordinary general meeting and because there is no remuneration payable by the body corporate as a result of the interim appointment. I accept that owners who let their units for holiday rentals may suffer serious financial detriment if the reception area of the scheme is not staffed when guests arrive or depart.

I note that in Application No: 0306-2000, the adjudicator commented upon the status of Ms Maxwell’s restricted real estate agent’s licence. At my request, the solicitors for the body corporate provided me with copies of various communications between Ms Maxwell and the Office of Fair Trading Queensland. On 30 August 2000, Ms Kylie Nixon of the Office of Fair Trading advised Ms Maxwell in the following terms:

This office is in receipt of the extended body corporate approval for a further 3 months and your renewal of licence is awaiting to be scheduled for a Auctioneers & Agents Committee meeting. You are deemed to be licensed and are able to trade until advised otherwise by this office. (typed as written)
Whilst I am aware of the provisions of section 87 of the Standard Module relating to the authorisation of a person as a letting agent, I consider that the order being sought does not fall within the category of matters subject to that section. Firstly, the order seeks to have Ms Maxwell authorised to act as a letting agent, not to be appointed as a letting agent. Secondly, the period during which Ms Maxwell is to act is very limited, given that the extraordinary general meeting is expected to be held by the end of September 2000. Finally I have been informed by the solicitors for the body corporate that there is no remuneration payable to Ms Maxwell for acting as a letting agent. I am also persuaded by the fact that a clear majority of owners are in favour of the order being made.

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 any party considers that an appeal of this decision is warranted, then they should appeal the interim order.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, if there is any delay in the holding of the extraordinary general meeting. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2n