The Pavilions [2000] QBCCMCmr 61 (10 February 2000)

RA MeekREFERENCE: 0039-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23308
Name of Scheme:	The Pavilions
Address of Scheme:	14 Oakmont Street ROBINA QLD 4226

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

Michael Anthony Glasman & Elizabeth Anne Bennett, the co-owners of lot 9



RA MeekI hereby order that the body corporate of The Pavilions shall not act upon, or otherwise implement, resolution 2 purportedly carried at the EGM of the body corporate held on 18 January 2000 dealing with the engagement of Underground Electrical Systems to undertake work, until a final order to this application is made, this application is withdrawn, and this order is of no effect by operation of law. y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0039-2000

“The Pavilions” CMS 23308

The applicants Michael Anthony Glasman & Elizabeth Anne Bennett, the co-owners of lot 9, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Order to render invalid the motion No. 2 on the attached agenda of meeting held at the Pavilions on Tuesday 18 January 2000.

The Applicants have also sought the following interim order of an adjudicator, quote -

An interim order of relief under section 225 Body Corporate & Community Management Act due to the urgency of the circumstances and the impact of works on our own and neighbouring properties.

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)).

This is the second application for an interim order in respect of motion 2 carried at the EGM of the body corporate held on 18 January 2000. In respect of the other application (0021-2000), an interim order to the effect that the motion not be acted upon, or otherwise implemented, until a final order to the application determined the application, was made on 24 January 2000. In that order, I outlined a process whereby I intended to expedite the resolution of that matter. However, immediately after the interim order was made, the application was withdrawn.

The current application is in very similar terms to that application. The applicants are alleging that motion 2 is invalid for the reason that it is not a decision of the body corporate relating to common property which is made reasonably and for the benefit of owners. This is not a matter I can determine in the context of an interim application. In this regard, many of my comments in order 0021 of 2000 are relevant. I therefore intend to make the interim order as sought, but then endeavour to expedite the resolution of this application, through very similar processes as outlined in the previous order, which I quote here for completeness –

The resolution to which the applicants object was motion 2 carried at the EGM of the body corporate held on 18 January 2000 (the meeting). That motion proposed as follows –

That the body corporate engage Cabling & Contract Services to undertake the electrical works as specified by Consulting Engineers, Peter Eustace & Associates, as provided for in the submitted tender as attached to this notice at a cost of $44, 345.00 and that this cost be born by the Sinking Fund.

Motion 4 of the meeting resolved to raise a special levy from the sinking fund to cover the cost of the works. I am informed by the manager that motion 2 was resolved by 32 votes in favour to 3 against (including the applicants) with no abstentions.

It is clear to me that the circumstances of this matter require that an interim order be made. Whilst I appreciate that the delaying of this matter may have implications for the body corporate, I have no alternative given the nature of the allegations made. If the applicants are correct in their allegations, then it is possible that the resolution in dispute might be invalidated on the basis that the body corporate have not complied with its obligation under section 114 of the Act to administer, manage and control the common property reasonably and for the benefit of lot owners. To not grant the interim order would mean that the work would proceed, and this would prevent any final determination of the validity of the resolution in question. I therefore intend to order that the work in relation to resolution 2 not proceed until such time as a final order to this application is made.

However, no person, including the applicants, should interpret the making of this interim order as a reflection on the merits of this application. All parties should note the fact that, in determining to make the interim order, I have proceeding on the basis which maintains or preserves the current status quo. I have not undertaken a consideration of any of the allegations of the applicants, nor the response of the body corporate to such allegations. I will leave my consideration of these matters for the final order.

In terms of the final order, I am aware of the request for the body corporate for a speedy resolution of the dispute. It is my duty however to first investigate the matter fully, before a final order can be made. My investigation will require submissions from other interested parties. I note from the manager's submission the following statement –

... 4 of the 8 affected owners were in attendance and offered no objection. Mr and Mrs Chapman did not attend this meeting.

This is a reference to an “informal meeting” of interested owners held on 30 November 1999. I assume from this statement that the works contemplated particularly affect, or have some impact on 8 of the 52 lots in the scheme. I further assume that this is so due to the location of the works in relation to the 8 lots said to be “affected”. In the circumstances, I require that the application be distributed to these 8 owners as persons “affected” by the application (see section 194(1) of the Act).

The body corporate should immediately provide to this office a list of the lot owner’s name and address for each of the 8 affected owners. This office will then organise a notice inviting submissions in respect of these 8 lots. In the meantime, the body corporate, nor any committee member should not seek to influence the views of the 8 affected owners in any way.

In addition, the body corporate will be invited to make any further or final submission to the application which it considers to be relevant, though I note that the current submission provided on behalf of the body corporate appears to address all aspects of the dispute, and is not limited to the terms of the interim application only.

Finally, the applicants will be entitled to reply to the submission made by the body corporate and any other party to this dispute. In this regard, the body corporate should immediate provide to the applicants a copy of its submission regarding this matter of 21 January, 2000 of 4 pages, together with any annexures to that submission which the applicants do not have. In addition, the body corporate should further provide to the applicants a full copy of any additional material which the body corporate might provide to this office by way of submission to this application. I remind the applicants that although they have a right of reply, this right is strictly limited to the terms of the body corporate’s submission. A reply is not to include new allegations or submissions supportive of the applicant’s case. If any such material is provided, it will be disregarded, or alternatively, if deemed appropriate, provided to the body corporate for its further response. In regard to any reply of the applicants to the body corporate’s submission, the applicants should also immediately provide a copy to the body corporate. The body corporate however does not have a further right of reply to such material, except perhaps to point out (if relevant) that the applicants are seeking to raise new allegations.

Once the body corporate has provided to this office a list of the 8 affected owners, this office will organise to seek further submissions. Following the closing date for submissions, I intend to arrange an on-site inspection of the parcel, and possibly a meeting of the parties, if I deem such meeting to be necessary. A final order will be made as expeditiously as possible, following the completion of the procedures as outlined.

I am informed by the body corporate manager that the same 8 owners are particularly affected by the proposed implementation of the motion. I have the list previously provided by the manager, and intend to seek submissions from these eight owners, but excluding the applicants. This office will immediately seek submissions from these 7 owners. As well the body corporate is now at liberty to make a further submission to the application for a final order. However the body corporate should note the requirement to provide a copy of both its original submission, and any further submission it might make, to the applicants.

Immediately the period allowed for submissions has closed, I intend to arrange an inspection of the scheme. All affected persons will be expected to make themselves available at relatively short notice, and I will not delay this matter unnecessarily. Following the inspection, I intend to make a final order to the application as expeditiously as possible.

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. y