Mariner's Reach [2001] QBCCMCmr 37 (30 January 2001)

RA MeekREFERENCE: 0032-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25179
Name of Scheme:	Mariner's Reach
Address of Scheme:	49 Newstead Terrace NEWSTEAD QLD 4006

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

Castleray Pty Ltd, the building and letting manager for Mariner’s Reach



RA MeekI hereby order that the application by Castleray Pty Ltd, the building and letting manager for Mariner’s Reach, for an interim order that pending a final determination of this dispute, the body corporate be restrained from taking any action of and incidental to Motion 9 passed by the body corporate at its EGM on 5 December 2000, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0032-2001

“Mariner's Reach” CMS 25179

The applicant Castleray Pty Ltd, the building and letting manager for Mariner’s Reach (the manager), has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	A declaration that motion 9 of the EGM held on 5 December 2000 is invalid;
2.	All necessary orders and directions to give effect to the above declaration;
3.	That the body corporate pay Castleray’s costs of and incidental to this application; and
4.	Such further and other orders as the Commissioner or Adjudicator thinks fit.

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

That pending a final determination of this dispute, the body corporate be restrained from taking any action of and incidental to Motion 9 passed by the body corporate at its EGM on 5 December 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)).

I remind the parties at this point that all I am determining in this interim order is whether or not to “restrain the body corporate from taking any action of and incidental to motion 9”.

Motion 9 was carried by the body corporate at the EGM of the body corporate held on 5 December 2000. The motion was carried by a vote of 66 in favour, 14 against and 9 abstentions. The resolution is headed “Caretaking and Letting Agreement” and the resolution contains a series of six sub-resolutions.

I consider that the applicant has not, in the grounds, put to me a specific reason why the interim order should be made. That is, the applicant has not specifically indicated to me that the nature or urgency of the circumstances requires the making of an interim order. This view is further enhanced by the fact that the applicants have waited approximately 43 days from the date of the meeting to the making of their application. I suggest that in that period of time, the body corporate might very well have implemented the resolution, at least so far as it was capable of resolution.

The submission of the body corporate, so far as it is relevant to the interim order and to the point I am making in particular, states –

The only actions called for by that motion, as the application acknowledges ... are the performance of contracts entered into by the body corporate, enforcement of bylaws ... and the establishment of procedures to deal with owners complaints about the performance by the applicant of its contractual duties. These are all duties cast upon the body corporate by the Act, either expressly or by necessary implication.

I agree in principle with this statement. Moreover, I can conclude no significant detriment to the applicant in the implementation of the resolution which would necessitate the making of an interim order. However, this statement should not be interpreted as a reflection of the validity or otherwise of the resolution. That inquiry involves different considerations, which will be canvassed in the final order to the application.

What the applicant’s grounds do not really allege, at least in the context of why the interim order might be made, is the potential damage to the applicant’s reputation and standing as manager should the resolution be allowed to be implemented. However, I consider that damage in this regard (if any) would have occurred with the very fact of publication of the motion on the agenda of the general meeting, and further with it being carried. I consider that the fact of implementation of those aspects of the resolution capable of being implemented would have negligible effect on the reputation or standing of the manager. Moreover, I suggest that the applicant was at all times entitled to seek to rectify any alleged incorrect imputations by way of circulation of materials supportive of their position to owners.

In the circumstances, I find no reason for the making of an interim order in terms as sought by the applicant.

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.