Le Beach [2000] QBCCMCmr 88 (21 February 2000)

RA MeekREFERENCE: 0038-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7628
Name of Scheme:	Le Beach
Address of Scheme:	136 The Esplanade BURLEIGH HEADS QLD 4220

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

Ronald William West, the co-owner of lot 20.


RA MeekI hereby order that the application by Ronald William West, the co-owner of lot 20 for an interim order that the current secretary / treasurer be immediately suspended, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0038-2000

“Le Beach” CMS 7628

The applicant Ronald William West, the co-owner of lot 20 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

a)	Removal of the secretary / treasurer Mr Robert Arthur, on the grounds of non-compliance with the regulations (Accm module) and general incompetence in the duties to which he was elected.
b)	Immediate appointment of an interim secretary and treasurer so that the AGM, scheduled for Tuesday 2 pm 7th March 2000, can proceed as planned.
c)	Adjourn the AGM date if (b) is not acceptable, or practicable within time limitations.

The applicant has also sought the following interim order –

Immediate suspension of the elected secretary and treasurer of Le Beach Body Corporate.

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)).

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.

I consider that this is not an appropriate application for the making of an interim order. The interim order sought is the immediate suspension of the secretary / treasurer, Robert Arthur. This is not the type of dispute which can be appropriately dealt with by interim order for many reasons.

Firstly, it does not involve relief in the nature of injunctive relief. Rather it seeks to prevent the secretary / treasurer from carrying out his role on the basis of allegations which have yet to be established.

Secondly, there is a mechanism provided in the legislation for the removal of members of the committee. Section 23(2)(f) provides that a committee member can be removed from office by an ordinary resolution of the body corporate in general meeting. I suggest to the applicant that if he is serious about having the secretary / treasurer removed, then he should propose a motion to this effect. Alternatively, the allegations the subject of the application might have been more appropriately dealt with in the context of a committee meeting, where the members of the committee could determine what, if any, instructions should be given to the secretary / treasurer regarding his performance.

Finally, I note that the AGM for this scheme will shortly be held. This will provide an opportunity for all members of the body corporate to consider the performance of the secretary over the previous year. If the members should choose to re-elect the respondent to the position of secretary / treasurer, then this will strongly suggest that they are satisfied with the respondent’s performance in the role. In addition, with the AGM about to occur, this would not be an appropriate time to order the removal of the secretary.

In the circumstances, for the reasons explained, I decline to order in terms of the interim order as sought. 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. However, this will not occur before the AGM is held. n