Maria Creek Estate [2002] QBCCMCmr 135 (13 March 2002)

P J HANLYREFERENCE: 0119-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	51 Rebecca Jane Parade KURRIMINE BEACH QLD 4871

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Michael John Taifalos and Shirley Matthews, the owners of lot 1, I & C Andrijevic directors of Melivan Pty Ltd, the owner of lot 4 and Claude Humphrey Marsh and Shirley Joy Marsh, the owners of lot 5

I hereby order that the Peter Alfred George Hablethwaite and Marcia Heather Hablethwaite, the owners of lots 2, 3, 6, 7, 8 and 9, shall immediately stop construction of the wall presently being constructed by them or on their behalf, or on behalf of the body corporate, between lots 3 and 4 until a final order to this application is made.

I further order that the application for an order to declare the annual general meeting purportedly held on 8 March 2002 as invalid, is dismissed. The validity of this meeting will be considered in my final order to this application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0119-2002

“Maria Creek Estate” CMS 25253

The applicants have sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. We wish to stop construction of a wall presently under way between lot 3 and lot 4 on the pathway of the common area.

2. The AGM called by the secretary of Maria Creek Estate Body Corporate for 8 March 2002 be declared invalid.

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)).

In the supporting grounds, the applicants state that the wall is not an improvement to the estate, but will actually degrade the appearance of the estate. The applicants further state that if the Hablethwaites wish to construct a wall then it should be on their own property at their own expense. The applicants further state that the Hablethwaites purported to give permission for the wall at an architectural and garden committee meeting held on 15 February 2002. The applicants further state that the secretary did not issue nomination papers to lot owners prior to calling the annual general meeting.

Mr & Mrs Hablethwaite were invited to respond to the application. In their submission, they noted that the body corporate had been included as a party, and should therefore respond to the application, but that as 3 of the 4 owners in the body corporate are applicants, they considered that there would be a conflict of interest in responding as the “other party”. I agree that this presents a problem in this particular situation. Mr & Mrs Hablethwaite then responded on their own behalf, notwithstanding that they considered the subject matter to belong solely to the body corporate. Mr & Mrs Hablethwaite then referred to a series of meetings held on 25 May 2000, 27 November 2001, 3 January 2002, 10 January 2002 and 15 February 2002. The minutes of these meetings were not provided. I intend to obtain further material including a sketch of the site and the location of the wall, and copies of the minutes in question, prior to making any final order. However, for the moment, I am concerned that a wall is being constructed on common property and the appropriate authority to construct the wall does not appear to have been given. If any further time is allowed to elapse, the wall may be completed, and then, if my final order is to the effect that the wall should not have been constructed in the first place, there will have been considerable expense incurred, and the wall may have to be removed. I therefore consider that it is in the interests of all parties that the construction of the wall should stop for the moment, to enable me to conduct further enquiries.

As far as the second order is concerned, it is not appropriate to make an interim order that invalidates a meeting, as, once again, further material is required to enable me to make a determination. I therefore propose to dismiss the application in relation to the annual general meeting purportedly held on 8 March 2002. In my final order I shall address all relevant issues in respect of this meeting.

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.

All parties should note the provisions of section 225(2) of the Act which provides that -

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.2y