Tea Trees [2002] QBCCMCmr 332 (27 May 2002)

P J HANLYREFERENCE: 0300-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20878
Name of Scheme:	Tea Trees
Address of Scheme:	4 Itong Place CURRUMBIN QLD 4223

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

Mavis Amy Harrison, the Owner of lot 18.


I hereby order that the application for an interim order:

1. That the annual general meeting to be held on 26 May 2002 be cancelled and declared null and void.

2. That the annual general meeting be rescheduled with the owners motions 1 to 15 being resubmitted, but

a) those motions that have not been presented correctly (being the purported motions from the committee – motion numbers 16 to 12), be resubmitted correctly in accordance with the Body Corporate and management Act (sic), standard module and to include quotes and contracts where necessary

b) and that the elections be processed correctly for the meeting

c) and that the voting papers include provision for the owners lot number, signature and date

d) that the minutes of the committee meeting showing resolutions to be submitted by the committee for the AGM be sent to owners

e) that explanatory notes be included

3. That as it seems that the secretary is incapable and inexperienced to prepare a proper general meeting, that an administrator be appointed to assist with the preparation and conducting of the annual general meeting.

is dismissed.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0300-2002

“Tea Trees” CMS 20878

The applicant, Mavis Amy Harrison, the Owner of lot 18 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the annual general meeting to be held on 26 May 2002 be cancelled and declared null and void.

2. That the annual general meeting be rescheduled with the owners motions 1 to 15 being resubmitted, but

a. those motions that have not been presented correctly (being the purported motions from the committee – motion numbers 16 to 12), be resubmitted correctly in accordance with the Body Corporate and management Act (sic), standard module and to include quotes and contracts where necessary

b. and that the elections be processed correctly for the meeting

c. and that the voting papers include provision for the owners lot number, signature and date

d. that the minutes of the committee meeting showing resolutions to be submitted by the committee for the AGM be sent to owners

e. that explanatory notes be included

3. That as it seems that the secretary is incapable and inexperienced to prepare a proper general meeting, that an administrator be appointed to assist with the preparation and conducting of the annual general meeting.

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.

Whilst the applicant has sought an order to invalidate the annual general meeting held on 26 May 2002, there are matters raised in the application which require a more detailed investigation than can be carried out in the short time frame available. Given that the applicant has not alleged that the secretary gave inadequate notice of the annual general meeting, which means that the notice was sent at least 21 days prior to the date of the meeting, it would have afforded more time for investigation if the application for this interim order had been made immediately after the applicant received the notice of meeting, rather than only 10 days prior to the meeting.

I therefore propose to dismiss the application for the interim orders. This will not prevent me from making final orders in the terms sought by the applicant, if my investigation reveals that such orders are warranted.

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.2n