West Burleigh Commercial Centre [2002] QBCCMCmr 105 (25 February 2002)

RA MeekREFERENCE: 0108-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26954
Name of Scheme:	West Burleigh Commercial Centre
Address of Scheme:	109 West Burleigh Road BURLEIGH HEADS QLD 4220

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

Joseph Hart, the owner of lot 1


RA MeekI hereby order that the application by Joseph Hart, the owner of lot 1, for an interim order to instruct the present Body Corporate Manager to hand over the books and records of the Body Corporate to Body Corporate Services – the new Body Corporate Manager, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0108-2002

“West Burleigh Commercial Centre” CMS 26954

The applicant, Joseph Hart, the owner of lot 1 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

Interim order to instruct the present Body Corporate Manager to hand over the books and records of the Body Corporate to Body Corporate Services – the new Body Corporate Manager.

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.

The applicant’s grounds state –

Non-payment of building insurance cover – lapsed 30/09/01 – not paid until 16/01/02.

Non-payment of Energex account resulting in disconnection of power to complex.

Non-payment of other accounts.

Failure to initiate proceedings for collection of levy arrears.

Levies not issued to owners.

In view of failure to attend to the above Body Corporate matter the owners wish to terminate the services of The Body Corporate Headquarters immediately and engage Body Corporate Services as the new Body Corporate Manager.

The applicant has not sought interim relief, but rather that a final order be issued as an interim. 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, including the body corporate manager, before any order can be made. Accordingly, this application for an interim order is dismissed.

I will make the comment however that this Office does not usually terminate appointments of body corporate managers. This body corporate will need to convene a meeting and include a motion to this effect on the agenda. I note that in a letter to The Body Corporate Headquarters dated 4 February 2002, the body corporate appears to be taking this action.

Moreover, in seeking the return of body corporate books and records, it is necessary for a committee of a body corporate to comply with the requirements of sections 152 and 153 of the Standard Module which provide, quote –
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Return of body corporate property—Act, s 268
152.(1) This section applies if—
(a) a person has possession or control of a body corporate asset for a community titles scheme (other than a body corporate asset in the lawful possession or control of the person under a body corporate manager or service contractor engagement); and
(b) the person took possession or control of the body corporate asset in the person’s capacity, or purportedly in the person’s capacity, as—
(i) a member, or an associate of a member, of the body corporate or of the committee; or
(ii) a body corporate manager or service contractor; and
(c) the person is served with a notice of a resolution of the committee requiring the person to deliver the body corporate asset to a committee member named in the notice within 7 days after the person is served with the notice.
(2) The person must comply with the notice.
Maximum penalty for subsection (2)—20 penalty units.
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Documents in custody of body corporate manager—Act, s 268
153.(1) This section applies if—
(a) a person (the “person”) engaged as a body corporate manager for a community titles scheme has custody of a document of the body corporate; and
(b) the person holds the document in photographic or electronic image form; and
(c) the person’s engagement as body corporate manager expires and is not renewed, or is otherwise brought to an end.
(2) The body corporate may—
(a) accept custody of the document in photographic or electronic image form; or
(b) require the person to reproduce, and give to the body corporate, the document in paper form.
(3) The person must, at the person’s cost, comply with a requirement of the body corporate under subsection (2)(b).
Maximum penalty for subsection (3)—20 penalty units.

This matter will now be investigated in accordance with the usual processes undertaken by this office, including submissions from all parties. A final order regarding the application will be made in due course. In the interim, the body corporate should provide any evidence to me that it has complied with the relevant provisions in seeking the return of body corporate records. n