The Waratah Main Beach [2002] QBCCMCmr 42 (29 January 2002)

RA MeekREFERENCE: 0512-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16570
Name of Scheme:	The Waratah Main Beach
Address of Scheme:	22 Montgomery Avenue MAIN BEACH QLD 4217

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

• Peter David Hickie and Beatrice Elizabeth Hickie, the owners of lot 87,

• Thomas Edward Sykes and Margot Rose Sykes, the owners of lot 78,

• Alan William Gerrard and Lynn Francis Gerrard, the owners of lot 33,

• John Alexander Connery and Margaret Stacey Connery, the owners of lot 52, and

• Gorden Sidney Ray and Pamela Marie Ray, the owners of lot 17

RA MeekI hereby order that the application–

• Peter David Hickie and Beatrice Elizabeth Hickie, the owners of lot 87,

• Thomas Edward Sykes and Margot Rose Sykes, the owners of lot 78,

• Alan William Gerrard and Lynn Francis Gerrard, the owners of lot 33,

• John Alexander Connery and Margaret Stacey Connery, the owners of lot 52, and

• Gorden Sidney Ray and Pamela Marie Ray, the owners of lot 17

for an order that the committee decision made on 27/07/01 (ref. 9 abuse by owner) “Resolved that the committee supports Mr Charles Ryman in the pursuit of legal action against the owner in question and approves an initial contribution of $7000 towards Mr Ryman’s legal fees of the action” be set aside, is dismissed on the basis that the committee decision was rescinded by the committee before being effected. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0512-2001

“The Waratah Main Beach” CTS 16570

The applicants –

• Peter David Hickie and Beatrice Elizabeth Hickie, the owners of lot 87,

• Thomas Edward Sykes and Margot Rose Sykes, the owners of lot 78,

• Alan William Gerrard and Lynn Francis Gerrard, the owners of lot 33,

• John Alexander Connery and Margaret Stacey Connery, the owners of lot 52, and

• Gorden Sidney Ray and Pamela Marie Ray, the owners of lot 17

have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the committee decision made on 27/07/01 (ref. 9 abuse by owner) “Resolved that the committee supports Mr Charles Ryman in the pursuit of legal action against the owner in question and approves an initial contribution of $7000 towards Mr Ryman’s legal fees of the action” be set aside.

On 23 August 2001, the following interim order was made –

RA MeekI hereby order that the committee of the body corporate of Waratah Main Beach shall not implement or otherwise act upon the resolution purported carried by it at the committee meeting held on 27 July 2001 numbered 9 and headed “Abuse by Owner”, which resolved

that the committee supports Mr Charles Ryman in the pursuit of legal action against the owner in question and approves an initial contribution of $7000 towards Mr Ryman’s legal fees of that action

until a final order is made, this application is withdrawn, or this order is of no effect by operation of law.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The body corporate manager and secretary treasurer to the committee has made a submission “on behalf of the committee” in response to the application. There is no need to elaborate on that submission since its purpose is to advise that the committee, on 29 August 2001, resolved by flying minute to rescind the committee earlier resolution of 27 July 2001 about contributions to Mr Ryman’s legal fees. That motion was carried on the basis that the earlier resolution of the committee “be rescinded, effective immediately”.

The submission concludes –

No monies have been paid by the body corporate to Charles Ryman as a contribution to legal fees, or on any other account, consequent to the committee’s initial decision on 27/07/01.

As the committee’s decision that is the subject of this application has been rescinded and no part thereof carried out, there appears to be no purpose to the final order sought being made, nor for the interim order made on 23/08/01 to remain standing.

For the reason that the resolution of the committee in question has been rescinded, I intend to dismiss this application as there is nothing further to be determined.