Sandown [2001] QBCCMCmr 82 (14 February 2001)

RA MeekREFERENCE: 0094-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10524
Name of Scheme:	Sandown
Address of Scheme:	4 Montana Road MERMAID BEACH QLD 4218

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

Robert David Blair, the owner of lot 3, Grahame Ronald Fordyce, the owner of lot 6, Trevor Roy Matthews, the owner of lot 8, and John Alfred Howard, the co-owner of lot 11.


RA MeekI hereby order that the application by Robert David Blair, the owner of lot 3, Grahame Ronald Fordyce, the owner of lot 6, Trevor Roy Matthews, the owner of lot 8, and John Alfred Howard, the co-owner of lot 11, for interim orders to -

1.	pay consulting engineers fees on the chairperson / treasurer for works commissioned at $700-00.
2.	appoint Gold Coast Body Corporate Specialists as administrator until AGM.
3.	repair railings and have engineer certify repairs,

so as to protect owners interests and monies already committed, and to introduce proper management accountabilities to the body corporate, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0094-2001

“Sandown” CMS 10524

The applicants, Robert David Blair, the owner of lot 3, Grahame Ronald Fordyce, the owner of lot 6, Trevor Roy Matthews, the owner of lot 8, and John Alfred Howard, the co-owner of lot 11, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

4.	Order to pay consulting engineers fees on the chairperson / treasurer for works commissioned at $700-00.
5.	Order to appoint Gold Coast Body Corporate Specialists as administrator until AGM.
6.	Order to repair railings and have engineer certify repairs.
7.	Order to remove fencing illegally constructed and chairperson to refund monies improperly paid out.

The applicants have also sought the following interim order, quote –

An urgent interim order is sought for parts 1, 2 and 3 above to protect owners interests and monies already committed, and to introduce proper management accountabilities to the 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 do not consider that the matters sought to be dealt with in this application are capable of being dealt with by way of 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 dismissed.

As well, I consider there are other more appropriate remedies available to the applicants in respect of the several matters affecting their body corporate of which they are concerned. In particular, the provisions of section 61 of the Standard Module are relevant. That section provides –

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Requirement for requested extraordinary general meeting
61.(1) An extraordinary general meeting (a “requested extraordinary general meeting”) of the body corporate must be called if a notice asking for an extraordinary general meeting to consider and decide motions proposed in the notice is—
(a) signed by or for the owners of at least 25% of all the lots included in the scheme; and
(b) given to the secretary or, in the secretary’s absence, the chairperson or, if the committee has not yet been chosen, given to the original owner.
(2) The secretary may be presumed to be absent if a notice is given to the secretary at the address for service of the body corporate, and no reply is received within 7 days.
(3) A requested extraordinary general meeting must be called and held within 6 weeks after the notice asking for the meeting is given.
(4) A requested extraordinary general meeting of the body corporate may be called even though the body corporate’s first annual general meeting has not yet been held.

This is the mechanism provided in the legislation whereby owners might bring matters which they consider need to be addressed before the body corporate. The applicants should note that the section requires not only that the notice be given but also that the notice include the format of those motions which the owners giving the notice want to be included on the agenda of the meeting to be convened.

Subsection (3) provides that the EGM must be called and held within 6 weeks of the notice being given. Given that the Act requires 21 days notice of meeting, then the owners giving the notice will know within three weeks of giving of the notice whether the chairperson intends to comply with the terms of the notice. If the chairperson has not given notice of the requisitioned EGM within three (3) of the giving of the notice by owners, I indicate here that I would be receptive to a further application seeking that I appoint an administrator to immediately call the meeting. Unless the chairperson has very good reason not to, I consider that she should take immediate steps to comply with any notice given to her by owners under section 61 of the standard module.

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. y