Knockbreak [2001] QBCCMCmr 21 (16 January 2001)

RA MeekREFERENCE: 0023-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21860
Name of Scheme:	Knockbreak
Address of Scheme:	60 Elanda Street SUNSHINE BEACH QLD 4565

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Daniel John Philpot (on behalf of Landoray Pty Ltd), the body corporate manager

RA MeekI hereby order that the application by Daniel John Philpot (on behalf of Landoray Pty Ltd), the body corporate manager for an interim order that the committee members be required to sign and return the body corporate manager’s agreement as adopted at the AGM meeting on the 30^th June 2000, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0023-2001

“Knockbreak” CMS 21860

The applicant, Daniel John Philpot (on behalf of Landoray Pty Ltd), the body corporate manager, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That committee members be required to sign and return the Body Corporate Manager’s Agreement as adopted at the AGM on the 30 June 2000.

That the Commissioner determine that in a standard format plan, that sinking funds may only be utilised on common property and not expended on buildings within the lots.

That the Commissioner determine that the committee or the body corporate does not have the power to require owners in a standard format plan to paint the buildings within the individual lots or to specify colours that should be painted.

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

That the committee members be required to sign and return the body corporate managers agreement as adopted at the AGM meeting on the 30^th June 2000.

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.

There is no aspect of urgency associated with this application that requires that an interim order be made. Moreover, the nature of the matters raised are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submissions from other parties to the dispute, before any order can be made. Accordingly, this application for an interim order is refused.

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. n