Surfers Hawaiian [2002] QBCCMCmr 139 (15 March 2002)

P J HANLYREFERENCE: 0145-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5682
Name of Scheme:	Surfers Hawaiian
Address of Scheme:	2890 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Imre Nemeth, the co-owner of lot 64



I hereby order that the application for an interim order:

A. That the extraordinary general meeting called for 15 March 2002 be declared void

B. That the flying minutes dated 3 December 2001, 10 December 2001, 11 December 2001 and 5 December 2002 (sic) be declared void

C. That full verified particulars be supplied to us the owners relating to the removal of the pontoon, i.e. when was it removed, and how much was paid and to whom.

D. That another extraordinary general meeting be called preferably by the administrator and that enough time be given for the calling of this meeting in order that owners be given the opportunity of submitting their own quotations and motions.

E. Insurance loss due to removal of damaged pontoons by the committee before insurance could be effected – that the committee and secretary be made financially liable and to explain why they removed damaged pontoons, leaving owners liable to pay possibly in excess of $100,000 for the committee’s negligence.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0145-2002

“Surfers Hawaiian” CMS 5682

The applicant, Imre Nemeth, the co-owner of lot 64, has sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

A. That the extraordinary general meeting called for 15 March 2002 be declared void

B. That the flying minutes dated 3 December 2001, 10 December 2001, 11 December 2001 and 5 December 2002 (sic) be declared void

C. That full verified particulars be supplied to us the owners relating to the removal of the pontoon, i.e. when was it removed, and how much was paid and to whom.

D. That another extraordinary general meeting be called preferably by the administrator and that enough time be given for the calling of this meeting in order that owners be given the opportunity of submitting their own quotations and motions.

E. Insurance loss due to removal of damaged pontoons by the committee before insurance could be effected – that the committee and secretary be made financially liable and to explain why they removed damaged pontoons, leaving owners liable to pay possibly in excess of $100,000 for the committee’s negligence.

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 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 propose to make the interim orders sought by the applicant. The orders are in fact seeking final relief. 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. The parties should note that although I have dismissed the application for the interim orders, I am in no way signalling my views in relation to the final orders. There is considerable additional material that I shall require before making my final order and the parties will be advised in due course of my requirements.2n