The Dees [2002] QBCCMCmr 299 (15 May 2002)

DJ ReardonREFERENCE: 0255-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14477
Name of Scheme:	The Dees
Address of Scheme:	12 Murlong Crescent PALM BEACH QLD 4221

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

Michael Lockhart and Dorothy Lloyd, the Co-owners of Lot 1


I hereby order that the Body Corporate must not repair, replace or otherwise alter the balcony of Lot 1, or the structure enclosing the balcony of Lot 1, located on the north-eastern corner of the building until this application is determined by final order.

I further order that the Body Corporate must not engage or authorise a person to repair, replace or otherwise alter the balcony or enclosure until this application is determined by final order.

DJ ReardonI further order that the application for an interim order postponing the Annual General Meeting of the Body Corporate for “The Dees” scheduled for 18 May 2002, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0255-2002

“The Dees” CMS 14477

1.	Orders Sought

The Applicants, the Co-owners of Lot 1, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“We request an order to force members of the body corporate to hold necessary committee, meetings, and include all committee members, prior to general meetings in order to plan the agenda and discuss safety and maintenance issues.

We request an order to force the body corporate to raise levies to an amount adequate for carrying out maintenance work.

We want occupiers and owners to comply with the by-laws and relevant legislation re removal of obstructions on common areas and lots.

We want the body corporate to insist that the insurance company for the body corporate send to each lot owner written confirmation of acceptance of risk factors re the property.

We want clarification of a number of misrepresented matters and acceptance by the body corporate of certain lot entitlements and factual matters of ownership in order to remove misconceptions and resolve arguments and disputes.”

The Applicants, have also sought the following interim order of an adjudicator, quote -

“We seek:

(a)	Interim Order to stop any tampering with lower concrete edge on north-eastern balcony (which is part of Lot 1), as certain evidence may be required for court hearings
(b)	Interim Order to postpone the Annual General Meeting set for 18 May, 2002, until the above matters are finalised.”

The community management statement for “The Dees” community titles scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) is the regulation module that applies to the scheme.

2.	Requested Information and Submissions

This dispute resolution application was made on 1 May 2002. On 2 May 2002, I wrote to the applicants requesting further information and materials in relation to the application for interim orders. The Committee for the Body Corporate was invited to make a written submission in relation to the application on 9 May 2002. The Owners of Lots 2, 3, 4 and 5 have made written submissions in relation to the application. While it is unclear from the face of the submissions whether these owners are committee members, I am satisfied that it is proper for me to consider their input in the course of considering the application for interim orders.

3.	Applications for Interim Orders

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 this order I am solely concerned with the applications for interim orders.

4.	Matters in Dispute

I have been asked in this application to make two interim orders, which I will consider separately.

4.1 Balcony of Lot 1

The first interim order sought by the applicant is an interim order to “stop any tampering with lower concrete edge on north-eastern balcony (which is part of Lot 1), as certain evidence may be required for court hearings”.

From the material before me, it appears that there is concern regarding an enclosed balcony, located on the north-eastern side of Lot 1. It appears that the Body Corporate may not have previously approved the enclosure of the balcony, and there are some repair and maintenance issues that may need to be addressed. The applicants have not demonstrated to me any definite intention of the Body Corporate to take any action regarding the enclosed balcony, or any definite impending “court hearings”. Further, the submissions received in response to the application do not evidence any definite intention on the part of the Body Corporate to carry out work to the balcony. An added difficulty is that the applicants have not sought a specific final order in the application regarding the enclosed balcony.

All of the above considerations support a denial of the interim order sought by the applicant. However, given that the Body Corporate is considering motions at the annual general meeting scheduled for 18 May 2002 relating to this area, I do intend to order that the Body Corporate must not repair, replace or otherwise alter the balcony until this application is determined by final order. Following this interim order and the annual general meeting for the scheme, the applicants should consider amending the final orders sought in this application to include a specific order about the balcony. If the applicants fail to do so, I will consider revoking this interim order.

4.2 Annual General Meeting scheduled for 18 May 2002

The second interim order sought by the applicants seeks the postponement of the annual general meeting for the scheme, which is scheduled for 9.30am, Saturday 18 May 2002. The applicant has provided me with a copy of the notice of annual general meeting, which I have reviewed.

The applicants appear to be relying on three main grounds in support of an order that the annual general meeting be postponed. Firstly, the applicants express a view that motion 10 (submitted by the applicants) which seeks the approval of the Body Corporate for the existing enclosure of the balcony of Lot 1, may not be fairly considered by the Body Corporate due to the distribution of a report by Barry Kilmister, Structural Engineer and Building Surveyor, which raises concerns regarding the enclosed balcony.

I do not consider that this is sufficient reason for denying the Body Corporate from conducting its annual general meeting. Firstly, the applicant is assuming that the Body Corporate will deny approval for the enclosure, which may not occur. Secondly, even if the approval is denied, the applicants would not be prevented from again seeking approval from the Body Corporate after providing owners with the further information and reports that the applicants have indicated they are seeking. Secondly, if the Body Corporate makes a decision in relation to motion 10 that the applicants consider is unreasonable or unlawful, then the applicants could seek a review of the matter by an adjudicator.

The second reason the applicants present in support of an order postponing the annual general meeting is that owners need more time to consider the maintenance matters described in motion 11. Motion 11, which has been presented by the applicants contemplates the Body Corporate discussing, budgeting for, and attending to a number of maintenance matters. I am of the view that it is perfectly acceptable for the Body Corporate to discuss the various maintenance matters described in the motion, in fact I consider it would be beneficial for these issues to be raised at the meeting. I would not prevent the Body Corporate from holding its annual general meeting on this basis. If an owner objects to the outcome of the motion, this may be a matter that is dealt with in a later order.

The third ground in support of the postponement of the annual general meeting is that the committee has not been able to discuss engineering and maintenance matters. I am particularly concerned that it does not appear that the committee has prepared the agenda for the annual general meeting. Section 45(1) of the Standard Module makes it clear that the committee must prepare an agenda for each general meeting. I consider that the failure of the committee to prepare, or at least review and approve an agenda prepared by the Body Corporate Manager for the scheme, can be sufficient grounds to cancel a general meeting.

However, in this case it appears that the applicant is primarily concerned with repair and maintenance issues and approval for the enclosed balcony, which are matters that may be considered and resolved either by the Body Corporate, or in a final order to this application. I am also mindful that the other 4 owners have expressed in submissions a desire to conduct the meeting to discuss the matters raised in the motions. In the circumstances, I consider that it is in the interests of owners to hold the annual general meeting as scheduled.

I do wish to point out to the Body Corporate that while general discussions are perfectly legitimate at a meeting, resolutions should only be made on the motions outlined in the notice of meeting. Further if the Body Corporate makes a resolution that will incur an expense that has not been budgeted for, the Body Corporate will need to strike a special levy, pursuant to a resolution at a further general meeting (section 95(2) of the Standard Module).

5.	Conclusion

I note that the final orders sought by the applicant in this matter could be described as quite general, and further, the applicant has not sought a specific order in relation to the balcony and the enclosure. The Commissioner for Body Corporate and Community Management may require the applicant to clarify the specific details of the final orders being sought before the application continues being processed. I would suggest that the applicants consider the final orders they wish to seek in light of discussions and decisions made by the Body Corporate at the annual general 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