Sanctuary Shores Resort [2002] QBCCMCmr 314 (21 May 2002)

P J HANLYREFERENCE: 0281-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15538
Name of Scheme:	Sanctuary Shores Resort
Address of Scheme:	3 Pinaroo Street HOPE ISLAND QLD 4212

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

Terence Henry Redding and Jacqueline Elizabeth Redding, the co-owners of lot 1.


I hereby order that the application for interim orders:

1. That the body corporate acknowledge that the applicants have validly exercised their option under the caretaking agreement and that the body corporate execute under the common seal in the presence of two authorised signatories the deed of extension of caretaking areement.

2. That the body corporate acknowledge that Terence Henry Redding has validly exercised his option under the letting agreement and that the body corporate execute under the common seal in the presence of two authorised signatories the deed of extension of letting; or

3. That (providing the order requested in item 1 is granted) even though the option under the letting agreement may not have been validly exercised, that it is in the best interests of the body corporate for a letting agent to be authorised and that the body corporate execute under the common seal in the presence of two authorised signatories the deed of extension of letting agreement.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0281-2002

“Sanctuary Shores Resort” CMS 15538

The applicants, Terence Henry Redding and Jacqueline Elizabeth Redding, the co-owners of lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the body corporate acknowledge that the applicants have validly exercised their option under the caretaking agreement and that the body corporate execute under the common seal in the presence of two authorised signatories the deed of extension of caretaking areement.

2. That the body corporate acknowledge that Terence Henry Redding has validly exercised his option under the letting agreement and that the body corporate execute under the common seal in the presence of two authorised signatories the deed of extension of letting; or

3. That (providing the order requested in item 1 is granted) even though the option under the letting agreement may not have been validly exercised, that it is in the best interests of the body corporate for a letting agent to be authorised and that the body corporate execute under the common seal in the presence of two authorised signatories the deed of extension of letting agreement.

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.



The body corporate manager and the body corporate committee were invited to respond to the application. A late submission was received from solicitors acting on behalf of Mr Woods, the secretary of the body corporate. In the interests of natural justice I have accepted the late submission. The essence of the submission is that the applicants have not exercised the options as alleged, or at all, and that the body corporate is therefore within its rights to refuse to sign the deed of extension submitted to it by the applicants’ solicitors.

I do not propose to make the interim orders sought by the applicants. It is clear that such orders might only be made after a proper investigation of the allegations and counter-allegations, which will necessarily entail taking evidence on oath from relevant witnesses, as well as an examination of relevant documentation. There is no provision under the Act for evidence to be taken on oath, and accordingly, any evidence which could be given by witnesses could not be properly tested in this jurisdiction.

The application will now be referred back to the Commissioner under section 197(7) of the Act.