44-46 Esplanade [2000] QBCCMCmr 659 (14 December 2000)

C G YOUNGREFERENCE: 0696-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17461
Name of Scheme:	44-46 Esplanade
Address of Scheme:	44-46 Esplanade COOMERA QLD 4209

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

Harold George WILLIAMSON, as a co-owner of Lot 1,



C G YOUNGI hereby order that any resolutions passed at the extraordinary general meeting to be held on 15 December 2000 must not be implemented or otherwise acted upon until such time as the application is resolved by final order. 2n
C G YOUNG2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0696-2000

“44-46 Esplanade” CTS 17461

The applicant, Harold Williamson of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1. That the Body Corporate Committee have acted improperly in retaining Solicitors without the approval of Owners and contrary to the vote of Owners at the EGM held on 31/5/99;

2. That Owners contributions should not be used in payment of legal fees which have been improperly incurred by the Body Corporate Committee contrary to the vote of Owners at the EGM on 31/5/99;

3. That Owners should not be personally liable for legal fees which have been incurred by the Body Corporate Committee without the approval of Owners at the EGM on 31/5/99;

4. That the resolution of the Body Corporate Committee of 8 November 2000 be declared invalid as being contrary to the vote of Owners at the EGM on 31/5/99 when Owners voted overwhelmingly against retaining Solicitors or commencing legal action regarding the pavers;

5. That the Notice of EGM for 15/12/00 be declared invalid on the grounds that the Notice is contrary to Regulation 42 of the BCCM (Standard Module) Regulation 1997 because;

(a) Notices to each Owner were not identical. Materials were included with the Notice given to certain Owners and were excluded from the Notice given to the Owners of Lots 1, 3, 4 and 19;

(b) Relevant information and materials have not been discvlosed to Owners;

(c) Materials included with the Notice to Owners of Lots 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 contain misleading information; and

(d) The Body Corporate Committee has not acted impartially between all Owners.

The applicant has also applied for the following interim order of an adjudicator, quote –

1. That the Resolution of the Body Corporate Committee of 8 November 2000 be declared invalid as being contrary to the vote of Owners at the EGM on 31/5/99 when Owners voted overwhelmingly against retaining Solicitors or commencing legal action regarding pavers;

2. That the Notice of EGM for 15/12/00 be declared invalid on the grounds that the Notice is contrary to Regulation 42 of the BCCM (Standard Module) Regulation 1997 because;

(a) Notices to each Owner were not identical. Materials were included with the Notice given to certain Owners and were excluded from the Notice given to the Owners of Lots 1, 3, 4 and 19;

(b) Relevant information and materials have not been discvlosed to Owners;

(c) Materials included with the Notice to Owners of Lots 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 contain misleading information; and

(d) The Body Corporate Committee has not acted impartially between all Owners.

This is one of two identical applications the other being Application 693-2000 lodged by Mr Iain Gosling a co-owner of Lots 3, 4 and 19. The applicant and Mr Gosling were the developers of the scheme. I have today issued an identical interim order for Gosling’s application.

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 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 225(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be refused, in circumstances where the only urgency relates to the applicant’s 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. Again, it is not possible to define these circumstances. However, given that an interim order may be made ex parte (ie. without reference to, or submission from the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be refused. It is a matter for an adjudicator to determine in respect of each application.

In his application for an interim order, the applicant has asked for a committee resolution to be declared invalid and the Notice of Meeting for the impending extraordinary general meeting of 15 December 2000 also be declared invalid. Effectively this last order would halt the meeting from proceeding.

The primary purpose of an interim order is to maintain the status quo while investigations are undertaken to determine what final order is appropriate. The first order seeks the invalidation of a resolution which would in reality be a final determination of the matter. Similarly with the second order sought. There are more appropriate interim orders in these circumstances and I have determined that one such an interim order be issued in this instance.

The first order merely concerns the committee authority for the calling of the meeting subject of the second order sought. Provided an interim order is issued to restrain the body corporate from either holding the meeting, or from dealing with certain motions, or from implementing any resolutions passed at the meeting, then the first order sought is of no consequence. That is the course I have adopted here and the validity of the committee resolution will be determined in the final order.

The issues raised in the application will require a more thorough examination than can be afforded them in the short period of time before the meeting is held. A submission to this application was received from solicitors for the respondent body corporate, Attwood Marshall Lawyers, though further investigations including possibly submissions from other parties, are necessary before the matters can be finally decided.

An interim order stopping a meeting from proceeding, especially at such short notice, is only made in extreme circumstances. The inconvenience to owners who have arranged their affairs to be present at a meeting, including perhaps interstate owners on airline flights, and the cost to the body corporate in administration and body corporate management fees, are good reasons why this practice is followed. My decision follows this practice.

In the circumstances of this matter as they appear to me from the papers (application and the body corporate response) I consider it appropriate that I issue an interim order that any resolutions made at the meeting should not be implemented until such time as a final order is issued.

I realise that the body corporate will wish to have the matter resolved promptly and I undertake to proceed to a final order as soon as possible. This matter will now be investigated in accordance with the usual processes undertaken by this office.
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