Markeri Court [2000] QBCCMCmr 67 (14 February 2000)

C G YOUNGREFERENCE: 0022-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24098
Name of Scheme:	Markeri Court
Address of Scheme:	5 Markeri Street MERMAID BEACH QLD 4218

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

C G YOUNGI hereby order that the application for an interim order that 2nthe body corporate not be required to respond to a “Requested Extraordinary General Meeting” notice from Illari Nominees Pty Ltd dated 13 January 2000 until such time as Application 10-2000 has been determined, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0022-2000

“Markeri Court” CMS 24098

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

That the Secretary of the Body Corporate be allowed to defer calling of an Extraordinary General Meeting as requisitioned by Illari Nominees Pty Ltd, pending a decision by the Commissioner for Body Corporate and Community Management on an Application to Resolve a Dispute Ref. No. 0010-2000 and that the Commissioner at the time appoint an Administrator in terms of the Body Corporate & Community Management Act 1997 Section 223(3)(i).

The applicant has also sought the following interim order of an adjudicator, quote -

That the Secretary of the Body Corporate be allowed to defer calling of an Extraordinary General meeting as requisitioned by Illari Nominess Pty Ltd.

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 if the requested meeting proceeds then “control of the body corporate will once again fall into the hands of Illari Nominees Pty Ltd.” I note that the requisition notice (see section 47 of the Commercial Module regulations) seeks a spill of all committee positions at the meeting, and the election of persons to fill the subsequent vacant positions. Presumably the current committee (which is the real applicant in the matter) is concerned that representatives of, or persons sympathetic to, Illari Nominees Pty Ltd (“Illari”) will comprise the committee, or at least the committee majority.

The applicant’s concern is apparently that the new committee would not pursue the matters currently being pursued against Illari, namely: reimbursement of the payments relating to air-conditioning repairs (this being the subject matter of Application 10-2000); removal of “For Sale” signs; review of the changed locking system; reinstatement of the common property gardens and other areas.

The applicant indicates that further applications are being contemplated in respect of at least some of these matters.

What the applicant is seeking is an order based on an apprehension of mismanagement by the likely incoming committee (majority). In my opinion an interim order would only be justified in such circumstances where the consequences of inaction would be extreme, for example, where there is a real possibility that some action will be taken by the new committee which will be either impossible to reverse (eg a tree cut down) or it will be difficult, or expensive, to reverse (eg a major contract entered into, a substantial wall demolished). Such extreme circumstances do not exist in this case. Application 10-2000 concerns whether or not certain expenditures are properly the responsibility of the body corporate. When the application is determined the order will either require the reimbursement, whether in whole or in part, or dismiss the matter; it only concerns a possible payment of money.

As to the matters concerning the removal of gardens, changed locking system etc., these are matters that have already occurred and an interim order will be of no effect. If the composition of the committee does change, however, then it should be aware of its responsibilities under the legislation and not take any action that is not in accord with it.

The applicant has also asked in the final order that an Administrator be appointed. This is merely an extension of what is being sought in the interim order. Administrators are only appointed (except in routine situations where a body corporate never properly constituted itself, or has fallen into inactivity) only where the body corporate is virtually incapable of administering itself. This is not the situation here; it is a situation of two factions at odds with each other with one holding a large voting advantage. The applicants course lies not in attempting to preserve a minority committee, but in protecting their rights by relying on the legislation and, where necessary, applications for adjudication.

For the above reasons I have dismissed the application for an interim order.

While I have made the above order, and a copy of the requisition notice was supplied with the application, this order should not be regarded as determining the validity of either the notice itself or the motions proposed.

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 the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.