Park Lane Kings Beach [2000] QBCCMCmr 84 (18 February 2000)

P J HANLYREFERENCE: 0075-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7137
Name of Scheme:	Park Lane Kings Beach
Address of Scheme:	84-86 Albert Street CALOUNDRA QLD 4551

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

Carol-Anne Hughes, the owner of lot 6 .


P J HANLYI hereby order that the application for an interim order to resolve the issue of responsibility of general maintenance as it specifically applies to the exclusive use area of this building under by-law 22 by declaring that-

a)	the Annual General Meeting Notice be voided for uncertainty and that the meeting due to be held on 27 February 2000 be postponed pending-

a determination by an adjudicator of the correct allocation of responsibilities in relation to the general maintenance of the areas of common property under exclusive use to lots 7, 8 and 9, and

b)	the adjudicator to then instruct the body corporate to draw up a new Notice of Meeting incorporating the correct responsibilities applying to exclusive use areas and permission to set a new date for the Annual General Meeting.

is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0075-2000

“Park Lane Kings Beach” CMS 7137

The applicant Carol Anne Hughes has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -
P J HANLYApplication for an interim order under section 197 of the BCCM Act 1997 to resolve the issue of responsibility of general maintenance as it specifically applies to the exclusive use area of this building under by-law 22 by declaring that-

c)	the Annual General Meeting Notice be voided for uncertainty and that the meeting due to be held on 27 February 2000 be postponed pending-

a determination by an adjudicator of the correct allocation of responsibilities in relation to the general maintenance of the areas of common property under exclusive use to lots 7, 8 and 9, and

d)	the adjudicator to then instruct the body corporate to draw up a new Notice of Meeting incorporating the correct responsibilities applying to exclusive use areas and permission to set a new date for the Annual General Meeting.

2n
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 this instance, I have not sought submissions from other owners, as it is stated that there is no dispute, but rather that owners are seeking a declaratory order as to the correct allocation of responsibilities in relation to exclusive use areas allocated to lots 7, 8 and 9. I do not propose to make an order postponing the Annual General Meeting which is scheduled for 27 February 2000 as there is no evidence before me that such a course is warranted.

The applicant has not sought interim relief, but rather that a final order be issued as an interim. In the circumstances, I am not satisfied that the applicant has 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. A final order regarding the request in relation to the exclusive use areas will be made in due course.2n