No. 9 Port Douglas Road [2002] QBCCMCmr 527 (27 August 2002)

RA MeekREFERENCE: 0331-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4871

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

Michael McEvoy, the company nominee of Famestock Pty Ltd, the owner of lots 1, 8, 9, 11, 12, 16 and 18


RA MeekI hereby order that the application by Michael McEvoy, the company nominee of Famestock Pty Ltd, the owner of lots 1, 8, 9, 11, 12, 16 and 18, for orders, quote -

1. Order the Committee / Body Corporate to hold an EGM as requested by the owners of more than 50% of the building;

2. Order the Committee / Body Corporate to pay the salary of the Resident Managers when and as it falls due;

3. Order the Committee / Body Corporate to pay to the managers the funds already approved by the committee for the building expenses and owed for the last 3 years,

is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0331-2002

“No. 9 Port Douglas Road” CTS 24368

The applicant, Michael McEvoy, the company nominee of Famestock Pty Ltd, the owner of lots 1, 8, 9, 11, 12, 16 and 18, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. Order the Committee / Body Corporate to hold an EGM as requested by the owners of more than 50% of the building.

2. Order the Committee / Body Corporate to pay the salary of the Resident Managers when and as it falls due.

3. Order the Committee / Body Corporate to pay to the managers the funds already approved by the committee for the building expenses and owed for the last 3 years.

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)).

In respect of the first of the three orders sought, I note that the meeting which the applicant is seeking be convened, has now been held. I have been provided with a copy of the notice of that meeting, and note that it was held on Thursday 22 August 2002. The body corporate manager has confirmed that the meeting did in fact proceed.

In respect of the second and third orders sought by the applicant, I conclude that these are matters pertaining to the contractual relationship between the parties. I have previously indicated to the parties (application 330 of 2002) my view regarding such matters; namely that these are matters for a court of competent jurisdiction. Further I note that in application 0168 of 2002, the Commissioner dismissed that application under section 201 of the Act for the reason that –

The application raises contractual issues, which I consider can be best determined in a court of competent jurisdiction. ...

I conclude that if the applicant wishes to pursue the second and third of the orders sought in this application, it will need to commence court proceedings. Accordingly I have dismissed this application.
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