Lake View Park [2002] QBCCMCmr 265 (3 May 2002)

P J HANLYREFERENCE: 0240-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20751
Name of Scheme:	Lake View Park
Address of Scheme:	Lake View Park Waimarie Street KELLYS BEACH BARGARA QLD 4670

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

Ian Ronald McColl and Jillian Rae McColl, the owners of lot 26



I hereby order that the application for an interim order that motions 3 and 4 proposed for the extraordinary general meeting of the body corporate to be held on 4 May 2002 be ruled out of order and that no voting on, or further action in respect of, the motions proceed, is dismissed.

I further order that in the event that either motions 3 and/or 4 are carried at the meeting to be held on 4 May 2002, then the body corporate shall not implement or otherwise act upon those said motions until the final determination of this application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0240-2002

“Lake View Park” CMS 20751

The applicants, Ian Ronal McColl and Jillian Rae McColl, the owners of lot 26, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. Motions 3 and 4 proposed for the extraordinary general meeting of the body corporate to be held on 4 May 2002 be ruled out of order and that no voting on, or further action in respect of, the motions proceed.

In the alternative, that:-
2. The body corporate be directed that-

a) The proposed motion 3 requires a resolution without dissent and that if it is not passed in that manner, it cannot be implemented; and

b) In the absence of motion 3 being passed by resolution without dissent, motion 4 be ruled out of order and that no voting on or further action in respect of motion 4 proceed.

The applicants have also sought an interim order of an adjudicator in identical terms.

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)).

The applicants have provided substantial grounds in support of their application. The body corporate was invited to respond to the application, and provided a detailed submission.

The issues canvassed are complex. The applicants have referred to numerous court decisions in support of their argument. These decisions were made in relation to the provisions of the Building Units and Group Titles Act 1980. In the short time available to me for the purposes of this interim order, it is not possible to research all of the cases cited and determine what, if any, relevance they have to this application and the Body Corporate and Community Management Act 1997, in particular section 133 thereof. The body corporate has not addressed that aspect of the applicants’ grounds in its submission, although of course I appreciate that time has been very limited, of necessity, given the date on which the meeting is to be held.

I therefore intend to dismiss the application for an interim order to rule motions 3 and 4 out of order, but I further intend to order that if motions 3 and 4 were to be carried at the meeting, then the body corporate shall not implement those motions or otherwise act upon them until the final determination of this application. My orders do not prevent the chairperson from exercising his powers under section 47 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

This matter will now be investigated in accordance with the usual processes undertaken by this office. The respondent body corporate will be afforded further time within which to make a more detailed submission, should it wish to do so, and the applicant will also be afforded a right of reply to the submissions. 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.

P J HANLYREFERENCE: 0240A-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20751
Name of Scheme:	Lake View Park
Address of Scheme:	Lake View Park Waimarie Street KELLYS BEACH BARGARA QLD 4670

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

Ian Ronald McColl and Jillian Rae McColl, the owners of lot 26



I hereby order that the interim order made on 3 May 2002 is extended for a further period of three (3) months.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0240A-2002

“Lake View Park” CMS 20751

On 3 May 2002 I made an interim order in this application in the following terms:

I hereby order that the application for an interim order that motions 3 and 4 proposed for the extraordinary general meeting of the body corporate to be held on 4 May 2002 be ruled out of order and that no voting on, or further action in respect of, the motions proceed, is dismissed.

I further order that in the event that either motions 3 and/or 4 are carried at the meeting to be held on 4 May 2002, then the body corporate shall not implement or otherwise act upon those said motions until the final determination of this application.

On 31 July 2002, the applicants’ solicitors requested an extension of the interim order.

On 7 August 2002, the body corporate manager forwarded further information in relation to the application to the Commissioner’s office. I consider that the applicants should be afforded a right of reply to this further information, and I have today arranged for a copy of the information to be forwarded to the applicants’ solicitors.

In the meantime, I have extended the interim order as requested.

2y