Jadon Place [2002] QBCCMCmr 488 (2 August 2002)

EJ ShannonREFERENCE: 0450-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11184
Name of Scheme:	Jadon Place
Address of Scheme:	31 Hooker Boulevard BROADBEACH QLD 4218

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

Colin Lamont, the Owner of Lot 16,



EJ ShannonI hereby order that the application for an interim order that a meeting of particular owners of lots in the “Jadon Place” community titles scheme held on 16 June 2002 is invalid and of no effect, is dismissed.

I further order that the application for an interim order preventing an extraordinary general meeting of the Body Corporate for “Jadon Place” scheduled for 4 August 2002 from proceeding, is dismissed.

I further order that the Body Corporate for “Jadon Place”, the Committee of the Body Corporate for “Jadon Place”, and all owners of lots included in the “Jadon Place” community titles scheme, must not carry out, or engage a person to carry out, any purported resolutions of the Body Corporate made at the meeting held on 16 June 2002, or the extraordinary general meeting scheduled for 4 August 2002.

I further order that pending determination of this application, the Committee for the Body Corporate for “Jadon Place” consists of those persons chosen by the Body Corporate to be members of the Committee, at the annual general meeting of the Body Corporate held on 2 June 2002.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0450-2002

“Jadon Place” CMS 11184

1.	Orders sought

The Applicant, the Owner of Lot 16, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), concerning the validity of a meeting of owners held on 16 June 2002.

From the material before me, it is evident that the Applicant is seeking a number of interim orders in relation to this application. Firstly, the Applicant seeks an interim order that the meeting held on 16 June 2002 was not a lawful meeting of the Body Corporate, and that no decisions made at the meeting are lawful or binding on the Body Corporate. In addition, the Applicant seeks an interim order that all resolutions of the meeting of 16 June 2002 be put on hold, pending a final determination of the validity of the meeting.

From the material presented by the Applicant on 31 July 2002, it also appears that the Applicant is seeking an interim order preventing an extraordinary general meeting scheduled for 4 August 2002 from taking place.

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)).

The community management statement for the “Jadon Place” community titles scheme indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (“the Accommodation Module”) applies to the scheme.

2.	Application and further information

This dispute resolution application was made on 29 July 2002. On 30 July 2002, the Commissioner for Body Corporate and Community Management wrote to the Applicant seeking further information in relation to the application. Specifically, the Commissioner sought clarification of the interim orders that the applicant was seeking, and requested copies of the minutes of relevant meetings.

The Applicant responded to the Commissioner’s request for further information and clarification of the application in a facsimile of 31 July 2002.

3.	Interim Orders

At this time, I am solely concerned with the application for interim orders. In any consideration of an application that seeks the making of an interim order, it is necessary to determine 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 that 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 expeditious, and objective consideration, then the request for an interim order may be refused. It is a matter for an adjudicator to determine in respect of each application.

4.	Matters in Dispute

From the material before me, I understand that an annual general meeting of the Body Corporate for “Jadon Place” was held on 2 June 2002. It appears that at the annual general meeting a Committee was elected and motions were considered by the Body Corporate. The Applicant was unable to provide a copy of the minutes of the meeting with the application, so I am uncertain as to the particulars of the meeting at this time.

The Applicant states that a further meeting of a number of owners was held on 16 June 2002. The Applicant objects to this meeting on a number of grounds including, but not limited to, that the meeting was not called by a person with proper authority to call the meeting, and inadequate notice of the meeting was given to particular lot owners and committee members.

From the material before me, I understand that the Applicant is primarily concerned with two outcomes of the meeting, firstly a decision to replace the person elected as Chairperson for the Body Corporate at the annual general meeting of 2 June 2002, and secondly, the decision to call an extraordinary general meeting of the Body Corporate for a number of purposes including a fresh election of committee members. From the material presented to the Commissioner on 31 July 2002, it has come to light that the extraordinary general meeting contemplated at the 16 June 2002 meeting is scheduled for Sunday 4 August 2002.

5.	Determination

As stated above, in this decision I am solely concerned with the application for interim orders. It is important to note at the outset that affected parties have not to date been afforded an opportunity to make a submission about the issues raised in the application.

It seems to me that the matter of the validity of the meeting held on 16 June 2002 requires further investigation, including allowing affected parties to make a written submission, before any final determination is made. For this reason, I do not intend to order that the meeting of 16 June 2002 is invalid as part of an interim order.

In terms of an interim order preventing the extraordinary general meeting scheduled for 4 August 2002 proceeding, I would like to state that it is not the normal practice of adjudicators to cancel meetings before they are held. This is particularly the case where an application for such an order is made close to the meeting date such that it is likely that owners have made travel and other arrangements, and possibly incurred significant expense, to attend the meeting in question. Rather, in many cases, it is possible to consider and make orders about any outstanding matters after the meeting is held.

However, in this case the Applicant has raised serious questions regarding the validity of the meeting of 16 June 2002, and consequently has raised issues about the validity of the extraordinary general meeting of the Body Corporate scheduled for 4 August 2002. I am satisfied that to some extent, the status quo should be maintained, pending final determination of this application. As a result, while I do not intend to make an order cancelling the meeting scheduled for 4 August 2002, I do intend to make orders that the Body Corporate, Committee and owners of lots included in the scheme must not carry out, or engage a person to carry out, resolutions of either the meeting held on 16 June 2002, or the extraordinary general meeting scheduled for 4 August 2002.

In making this interim order, I am concerned to ensure that the Body Corporate is not left without a committee while this application is being determined. Balancing the competing interests in this matter, it seems to me that while this application is being determined, the expressed wishes of the Body Corporate at the annual general meeting of 2 June 2002 concerning membership of the Committee should be given preference to those expressed at the later meetings, the validity of which form the issues in dispute. Therefore, in the interim, I intend to order that pending determination of this application, the Committee for the Body Corporate will consist of those persons chosen to be members of the Committee by the members of the Body Corporate at the annual general meeting held on 2 June 2002.

6.	Conclusion

As stated previously, in making this order, I am solely concerned with the application for interim orders. In making this decision, I have made no determination as to the merits or otherwise of the application for final orders. This matter will now be investigated in accordance with the Act, and the usual processes undertaken by this office. It is likely that a final order determining 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.2n