Zanzibar Mooloolaba [2001] QBCCMCmr 529 (11 October 2001)

C G YOUNGREFERENCE: 0551-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27494
Name of Scheme:	Zanzibar Mooloolaba
Address of Scheme:	47-51 The Esplanade MOOLOOLABA QLD 4557

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

David Bruce MAGNEY and Mary Jane MAGNEY, as the co-owners of Lot 37,



C G YOUNGI hereby order that the body corporate is to take all steps necessary to prevent the implementation of Resolutions 2, 3 and 4 passed at the extraordinary general meeting of the body corporate held on 24 November 2000 concerning the approval and construction of an overhead pedestrian walkway to the common property pedestrian access right of way through “Zanzibar” to and from The Esplanade, Mooloolaba, pending determination of the application by final order. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0551-2001

“Zanzibar Mooloolaba” CMS 27494

The applicants, David and Mary Magney of Lot 37, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1. “Declarations that the following motions passed at the Extraordinary General Meeting of the owners of Zanzibar Mooloolaba CTS 27494 on Friday 29 September 2000 are void or invalid :-

a. Resolved by resolution without dissent that the Body Corporate –

i. Agree to the owner of Lot 11, at the owner’s cost and expense, constructing a facility in Lot 11 and the Common Property so as to enable a Bank or Financial Institution to install in and operate from the facility an Automatic Teller Machine/Self Service Terminal.

ii. Agree that the owner of Lot 11 be permitted to have a Bank or Financial Institution install, conduct and operate and Automatic Teller Machine/Self Service Terminal from the facility on the Common Property for such period of time that a Bank or Financial Institution is prepared to provide the ATM/terminal upon such terms and conditions as the owner shall negotiate;

iii. Sign such documentation as the owner or the Bank or Financial Institution shall reasonably require to enable the facility to be built at the ATM/terminal installed conducted and operated in the building.

b. Resolved by resolution without dissent that the Body Corporate –

i. Agree to the re-subdivision of the Common Property and Lot 12, the effect of which will be to change the boundary configuration of Lot 12 to the size and dimension as is shown on the attached plan marked “C”.

ii. Affix the Common Seal of the Body Corporate to the plan of subdivision and all other documentation necessary to cause the re-subdivision to be affected:

iii. Agree to the owner of Lot 12, at the owner’s cost and expense, constructing a facility in the new Lot 12 and the Common Property so as to enable a Bank or Financial Institution to install in and operate from the facility an Automatic Teller Machine/Self Service Terminal.

iv. Agree that the owners of Lot 12 be permitted to have a Bank or Financial Institution install, conduct and operate an Automatic Teller Machine/Self Service Terminal from the facility and the Common Property for such period of time that a Bank or Financial Institution is prepared to provide the ATM/terminal upon such terms and conditions as the owner shall negotiate.

v. Sign such documentation as the owner or the bank or the financial institution shall reasonably require to enable the facility to be built and the ATM/terminal installed, conducted and operated in the building.

c. Resolved by resolution without dissent that the Body Corporate-

i. Granted the owner of Lot 12 a licence to use the area hatched in black on the plan annexed and marked “A” for the purpose of the conduct, operation, service and maintenance of a bank or other financial institution Automatic Teller Machine and/or Self Service Terminal, substantially upon the terms and conditions contained in the licence to use as is annexed and marked “B”.

ii. Affix the Common Seal of the Body Corporate to that proposed licence agreement.

2. Declarations that the following motions passed at the Extraordinary General Meeting of the owners of Zanzibar Mooloolaba CTS 27494 on Friday 24 November 2000 are void or invalid-

a. Resolved by resolution without dissent that the Body Corporate advised Juniper that it consents in principle to the conceptual proposal that the MSC Car Park Development be connected by way of an overhead pedestrian walkway to the Common Property pedestrian access right of way through Zanzibar to an from the Esplanade, Mooloolaba.

b. Resolved by resolution without dissent that the Committee of the Body Corporate be authorised to negotiate and sign on behalf of the Body Corporate such documentation which the MCS, Main Roads Department, the Department of Natural Resources, and any other authority of competent jurisdiction as shall become necessary and expedient to achieve the overhead pedestrian walkway from the car park to The Esplanade, Mooloolaba, through the existing common area right of way pedestrian access through Zanzibar to and from The Esplanade.

c. Resolved by resolution without dissent that the Committee of the Body Corporate be authorised to negotiate and sign on behalf of the Body Corporate with Juniper such agreement as shall be necessary and expedient to enable Juniper (at its entire cost and expense) to construct and join the overhead pedestrian walkway to Zanzibar upon terms and conditions to give the Body Corporate all necessary protection and assurances that the interests of the Body Corporate, will, at all times, be fully protected.

3. An order waiving the applicants’ non-compliance with section 193(2) of the Body Corporate and Community Management Act 1997.”

The applicants have also sought the following interim order of an adjudicator, quote -

“That the Body Corporate be prevented from acting on the purported resolutions without dissent, detailed (in paragraph 10) above until this matter has been resolved.”

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)).

This order is concerned solely with the interim orders sought by the applicant.

While the applicants have sought interim orders in respect of the resolutions without dissent concerning the installation of an ATM terminal in the scheme building, namely the re-subdivision of the common property and Lot 12, construction work and installation of the terminal, and a right to use an adjacent area of common property, enquiries made by this office show that these matters have already been acted upon and the ATM has been in service for many months. These facts should be known to the applicants and I fail to see any purpose in their seeking an interim order regarding this matter. An interim measure may have been possible when the applicants first put their dispute into the hands of another solicitor in late 2000, however this aspect should have been reviewed and removed prior to this application being lodged. Accordingly, no interim order is made concerning the ATM terminal, though the validity of the relevant resolutions will be considered in the final order to this application.

In regard to the interim orders sought to prevent the overhead pedestrian walkway proceeding, enquiries by this office show that the walkway has not yet been constructed and there are no immediate plans for its construction. In the circumstances, I have issued an interim order that the body corporate take the necessary steps to prevent the relevant resolutions being implemented.

I also point out that, as the meetings at which these resolutions were passed were held in September and November 2000, there is a question of jurisdiction under the time limiting provisions of section 193(2)(b) of the Act. This will be considered when determining the final order after the respondent body corporate, and an affected party, Hollovale Pty Ltd, have been invited to make submissions to the application.

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.

Although I intend that the matter will be determined as soon as possible, all parties should note the provisions of section 225(2) of the Act, which provides -

An interim order -

(a)	has effect for a period (not longer than 3 months) stated in the order; and
(b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
(c)	may be cancelled by a later order made by the adjudicator; and
(d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2n