Booval Homemaker and Convenience Centre [2002] QBCCMCmr 439 (8 July 2002)

C G YOUNGREFERENCE: 0365-2002

INTERIM ORDER O F AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26002
Name of Scheme:	Booval Homemaker and Convenience Centre
Address of Scheme:	214 Brisbane Road BOOVAL QLD 4304

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

TEXERA PTY LTD A.C.N. 082 409 201, as owner of Lot 11, nominee Arthur KAKAVAS,



C G YOUNGI hereby order that the body corporate must not execute the licence agreements with Central Properties Corporation Pty Ltd purported to have been resolved in respect of Motion 8 at the annual general meeting held on 21 March 2002, for the construction of entry awnings, loading docks and car parks on common property, pending determination of the application by final order.

I further order that if the said licence agreements have already been executed, then Central Properties Corporation Pty Ltd must not carry out any construction work under those agreements, pending determination of the application by final order. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0365-2002

“Booval Homemaker and Convenience Centre” CMS 26002

The applicant, Texera Pty Ltd of Lot 11 through its nominee Arthur Kakavas, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act)” -

1. “That the resolutions numbered 8 and 9 in the agenda of the Body Corporate annual general meeting held on 21 March 2002 and passed on that day be declared invalid.

2. That the Licence Agreements proposed to be entered into be renegotiated to properly protect the body corporate re costs and proper financial return to the body corporate.

3. An order to prevent the construction of a new car park in Lot 4.”

The applicant has also sought the following interim orders of an adjudicator –

1. “That the Licence Agreement with the owners of Lots 4 and 5 pertaining to the construction of entry awnings, loading dock areas and car park affecting the common property not be executed.

2. That the construction of the entry awnings to the buildings be constructed on Lots 4 and 5, the loading dock area for the occupiers of Lots 4 and 5 and the car park or indicated in the plan which have been annexed to the draft Licence Agreement to be stayed pending resolution of the Dispute.”

JURISDICTION:
This is a dispute between an owner, the applicant Texera Pty Ltd of Lot 11, and the body corporate, the respondent, concerning resolutions for the entry of the body corporate into licence agreements with an owner (Central Properties Corporation Pty Ltd), the application of certain by-laws to the agreements, and the construction of certain improvements by that owner. This is therefore a matter that falls within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

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)).


APPLICATION:
Section 197 of the Act provides that an application for an interim order may be referred by the Commissioner to an adjudicator for determination without submissions having first been sought from the respondent (and perhaps other interested parties), and this course has been adopted as appropriate in this instance (see also section 194 of the Act). However, the respondent body corporate, and Central Properties Pty Ltd (“Central Properties”) as an interested party, will be provided with a copy of the application and invited to make submissions before a final order in the matter is made.

The applicant relies on a number of grounds for the orders sought. Firstly that Motions 8 and 9 were lodged with the secretary by the then owner of Lots 4 and 5, Derringhurst Pty Ltd, after the financial year-end date of 30 November 2001, yet were included in the agenda of the annual general meeting (“the meeting”) in contravention of section 30(2) of the Body Corporate and Community Management (Commercial Module) Regulation 1997 (“Accommodation Module”). Secondly, Motion 8 provides for the construction of improvements on the common property (awnings, loading dock and car parking spaces) for the benefit of Lots 4 and 5, under licences with the body corporate, yet the motion was put and declared passed as an ordinary resolution. The proposal requires that 13 of the car parks shown on the site plan referred to in the Community Management Statement as Plan No. 5847, not be constructed. The applicant contends that use of that area of common property has not been accompanied by a resolution to avoid compliance with By-law 13.2; such a motion should be a special resolution, “due to the significant nature of such action which affects the whole of the complex”. Thirdly, the occupation and use of common property will interfere unreasonably with its use and enjoyment by others.

The applicant has other grounds that will be canvassed in determining the final order.


DETERMINATION:
I am satisfied that urgent circumstances exist for the interim orders to be granted. I have extended the interim order to include the situation where the licences may already have been executed.

I recognise that the matter is one of commercial significance for both parties and needs to be resolved promptly in their, and other owners’, interests. Accordingly, following receipt of submissions from the body corporate and Central Properties, a decision will be made promptly as to how the matter can be best resolved and then that course of determination will be put in progress.

While the matter will be determined before the following provision operates, nevertheless I advise all parties of the provisions of section 225(2) of the Act which states -

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.2n