Strathpine Village Stage D [2002] QBCCMCmr 62 (6 February 2002)

DJ ReardonREFERENCE: 0070-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20031
Name of Scheme:	Strathpine Village Stage D
Address of Scheme:	26-38 Mecklem Street STRATHPINE QLD 4500

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

Edna Josephine Vincent, the Owner of Lot 1


DJ ReardonI hereby order that the application for the following interim order

“Recovery of 2nbody corporate funds incurred in regard to the proposed assignment in November/December 1999.”

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0070-2002

“Strathpine Village Stage D” CMS 20031

The applicant Edna Josephine Vincent, the Owner of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“The body corporate recover monies owed since August 2001.”

The Applicant, has also sought the following interim order of an adjudicator, quote -

“Recovery of body corporate funds incurred in regard to the proposed assignment in November/December 1999.”

Section 225(1) 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)).

This dispute resolution application appears to concern an amount of $5035.00 incurred by the body corporate in the course of an assignment of a service agreement in 1999. The applicant considers that pursuant to the service agreement, this cost should have been borne by the service contractor. As a result, the applicant is seeking an order that the body corporate recover the $5035.00.

In this particular decision I am solely concerned with the application for an interim order. 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.

I consider that the interim order sought by the applicant is effectively seeking a final determination of the issues raised in the application. Before I can make a final determination on the matters raised in the application, it is necessary to fully investigate the issues, including allowing affected parties to make a written submission in response to the application. I anticipate that the applicant will also be required to provide further details regarding the application including providing copies of relevant documents.

Further, while it may be preferable for all parties involved to have a timely resolution of the application, I do not consider that the circumstances as outlined in the application are suggestive of an emergency or urgent situation, which would warrant the making of an interim order, particularly given that $5035.00 appears to be an expense incurred by the body corporate in November/December 1999, some 2 years ago.

Accordingly, this application for an interim order is refused.

I do wish to emphasise to parties that I am dismissing this application for an interim order on the basis that the nature of the interim order sought by the applicant is not appropriate for resolution as an interim order. In dismissing the application for an interim order, I am not making any determination as to the merits of the application for final orders.

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.