Banyandah Towers [2000] QBCCMCmr 577 (9 November 2000)

P G DanielsREFERENCE: 0633-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10295
Name of Scheme:	Banyandah Towers
Address of Scheme:	150 Duporth Avenue MAROOCHYDORE QLD 4558

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

James Callaghan a co-owner of lot 106, Michael Clark a co-owner of lots 13, 34 and 103, Bill Chubb the owner of lot 110 and Colin Davis a co-owner of lots 27 and 38


P G DanielsI hereby order that the application for the following interim orders:

1.	That motion 12 passed at the annual general meeting held on 29 September 2000 be declared invalid.
2.	If the above interim order is made, then a further order that Del Linkhorn be appointed as an administrator under Section 223(3)(v) of the Body Corporate and Community Management Act 1997 for the purpose of calling and holding an extraordinary general meeting to consider the issue of the appointment of a body corporate manager.

is dismissed.1y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0633-2000

“Banyandah Towers” CMS 10295

The applicants, James Callaghan a co-owner of lot 106, Michael Clark a co-owner of lots 13, 34 and 103, Bill Chubb the owner of lot 110 and Colin Davis a co-owner of lots 27 and 38, have sought the following interim orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	That motion 12 passed at the annual general meeting held on 29 September 2000 be declared invalid.
2.	If the above interim order is made, then a further order that Del Linkhorn be appointed as an administrator under Section 223(3)(v) of the Body Corporate and Community Management Act 1997 for the purpose of calling and holding an extraordinary general meeting to consider the issue of the appointment of a body corporate manager.

Section 197(4) 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)).

Motion 12 referred to in order 1 relates to the engagement of a body corporate manager. The applicants have alleged certain irregularities in respect of the engagement.

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 197(4) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief.

An interim order will be refused in circumstances where the only urgency relates to the applicants’ 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.

There is no aspect of urgency associated with this application that requires that 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. Accordingly, this application for an interim order is refused.

Moreover, the applicants have not sought interim relief, but rather that a final order be issued as an interim. In the circumstances, I am not satisfied that the applicants have established that either the nature or urgency of the circumstances warrant the making of an interim order. Accordingly, this application for an interim order is refused.

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. That will include consideration of the application for all interim and final orders.