La Porte D'Or [2000] QBCCMCmr 537 (20 October 2000)

RA MeekREFERENCE: 0582-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'or
Address of Scheme:	3422 Gold Coast Highway SOUTHPORT QLD 4220

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

Donjen Pty Ltd, the owner of lot 141



RA MeekI hereby order that the application by Donjen Pty Ltd, the owner of lot 141, for interim orders to the effect that

1.	A declaration that motion 18 of the EGM to be held on 21st October 2000 is invalid, and an order that the chairperson of the EGM rule motion 18 out of order;
2.	A declaration that motion 21 of the EGM to be held on 21st October 2000 is invalid, and an order that the chairperson of the EGM rule motion 21 out of order;

is dismissed.


The above order was appealed to the District Court in Brisbane. On 29 January 2001 the appellant and respondent agreed that the appeal should be dismissed and there be no order as to the costs of the appeal. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0582-2000

“La Porte D'or” CMS 12681

The applicant Donjen Pty Ltd, the owner of lot 141, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	A declaration that motion 18 of the EGM to be held on 21st October 2000 is invalid, and an order that the chairperson of the EGM rule motion 18 out of order.
2.	A declaration that motion 21 of the EGM to be held on 21st October 2000 is invalid, and an order that the chairperson of the EGM rule motion 21 out of order.

The Applicant has also sought that the above orders be made “as a matter of urgency” as the EGM will be held on 21 October 2000.

Section 225(1) 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)).

Though I have not been provided with a copy of the agenda for the EGM to be held on 21 October 2000 (the EGM), I have been informed in the grounds to the application that motions 18 and 21 are as follows -

Motion 18 - That as section 124(3) of the ... Standard Module ... requires authorisation of owners and not committee members to install cameras on common property, the camera installed by an owner on the 26^th level be removed, at his expense.

Motion 21 – Disconnection of electricity supply to a lot owner’s private remote control unit on carpark door to resolve that the committee write to the owner of lot 141 demanding the lot owner, at his own expense and within 14 days of receiving the letter from the committee disconnect the power supply to the garage door remote control unit which is currently connected to the body corporate’s electricity supply failing which the committee will have the expense of the owner of lot 141.

Prior to the making of this interim order, a submission in respect of the application was sought from the committee. I have the benefit of a submission by the committee in considering this interim order. Notwithstanding that the applicant is the owner of a lot, a director of whom is the current secretary of the body corporate committee, the committee position appears to be in conflict with that of the applicant.

In my view, the applicant has not really addressed the need for this application to be considered urgently. In fact, the applicant expects the motions in question to be ruled out of order by the chairperson. Obviously, the applicant has some indication of how the chairperson intends to deal with motions 18 and 21 at the meeting. The applicant is however obviously concerned at the possibility of the body corporate members present overruling the chairperson’s rulings, and requiring that the motions be put to the meeting.

This concern however does not justify why the motions in question should be ruled invalid at the interim order stage. An interim order will not be made simply because of an applicant’s desire to have an issue addressed more expeditiously, or because it might suit the applicant’s purposes that this be done. Rather an interim order will be made where the nature or urgency of the circumstances justify the making of such an order.

It is not the usual practice of an adjudicator to invalidate a motion before it has even been put to the body corporate, unless it can be seen to be in clear contravention of the legislation. Rather, the usual practice is to consider the validity of a motion once it has been carried, and where it is alleged to be invalid for whatever reason. The motions in question, on their face, cannot be said to be in contravention of the legislation.

I have considered the applicant’s grounds. There is nothing in the grounds which warrants the invalidation of the motions at this stage, and consequently I intend to dismiss the application for interim orders to this effect. The validity of the motions, and the concerns raised by the applicant, will now be fully canvassed in the context of the making of a final order to this application. However in the interim, the motions should be put to the meeting, and voted on. I further suggest that if the chairperson does declare the motions out of order, then that she provide a written statement of her reasons for doing this, in compliance with the requirements of the legislation. If necessary, I will consider the validity of any such ruling in the context of a final order to this application.

This 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.

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, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order. n