Trinity Place [2002] QBCCMCmr 639 (18 October 2002)

DJ ReardonREFERENCE: 0584-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6537
Name of Scheme:	Trinity Place
Address of Scheme:	1 James Street, BEENLEIGH Q 4207

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

Big C Investments Pty Ltd ACN 097 317 318, the Owner of Lots 5 and 6,


DJ ReardonI hereby order that the application for the following interim orders of an adjudicator,

“1. That any motions carried at the Extraordinary General Meeting of the Body Corporate held on 28 June 2002 be declared void.

2.	That the Body Corporate Managers, Body Corporate Administration, be removed as Body Corporate Managers for the scheme.

3.	That the Commissioner impose such penalty as he may deem fit on the said Body Corporate Managers for Breaches of the Body Corporate and Community Management Act.

4.	That an audit be conducted into the books of account of the Body Corporate Managers, Capitol Body Corporate Administration, into (sic) respect to the books of account for the Community Title Scheme-Trinity Place CTS No 653(sic)

5.	That the Application filed by the owner of Lot 2 dated 22 July 2002 be dismissed with costs

6.	Such further or other orders as the Commissioner may deem meet (sic)”,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0584-2002

“Trinity Place” CTS 6537

1.	Orders sought

The Applicant, the Owner of Lots 5 and 6, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“1. That any motions carried at the Extraordinary General Meeting of the Body Corporate

held on 28 June 2002 be declared void.

2.	That the Body Corporate Managers, Body Corporate Administration, be removed as Body Corporate Managers for the scheme.
3.	That the Commissioner impose such penalty as he may deem fit on the said Body Corporate Managers for Breaches of the Body Corporate and Community Management Act.
4.	That the Building Units Title Plan and Statement be amended to include the balcony area on the upper level of the building into lots 5 and 6.
5.	That the building (Trinity Place) be resurveyed, and that the Lot Entitlements attaching to each lot be varied in accordance with the percentage area of each lot by comparison to the whole of the lots.
6.	That the costs of any such re-survey, reallocation of lots and amendment of the Building Units Plan be shared equally between the lot owners.
7.	That the advertising signage affixed to the southern side of the building be removed, and that the cost of such removal be borne by the entities advertised thereon.
8.	That there be a division of costs of the renovation works carried out to the said building (Trinity Place).
9.	That the by-laws be amended to provide for a uniform signage standard attaching to the building, including size, fonts, colour and content.
10.	That there be a reallocation of car parking spaces allocated in accordance with the reassessed lot entitlement allocations.
11.	That the Energex Power Metering Board be reallocated to the ground level of the building and that the costs f (sic) such removal and replacement be borne equally between the lot owners.
12.	That the Application filed by the owner of Lot 2 dated 22 July 2002 be dismissed with costs.
13.	Such further or other orders as the Commissioner may deem meet (sic).”

The Applicant has also sought the following interim orders of an adjudicator in relation to the application, quote-

1.	That any motions carried at the Extraordinary General Meeting of the Body Corporate held on 28 June 2002 be declared void.
2.	That the Body Corporate Managers, Body Corporate Administration, be removed as Body Corporate Managers for the scheme.
3.	That the Commissioner impose such penalty as he may deem fit on the said Body Corporate Managers for Breaches of the Body Corporate and Community Management Act.
4.	That an audit be conducted into the books of account of the Body Corporate Managers, Capitol Body Corporate Administration, into (sic) respect to the books of account for the Community Title Scheme-Trinity Place CTS No 653(sic)
5.	That the Application filed by the owner of Lot 2 dated 22 July 2002 be dismissed with costs
6.	Such further or other orders as the Commissioner may deem meet (sic)”

This is one of two dispute resolution applications relating to the “Trinity Place” Body Corporate currently being administered be the Office of the Commissioner for Body Corporate and Community Management. The other application (reference number 0440-2002), was made by the Owner of Lots 1 and 2, and seeks orders concerning building works allegedly undertaken by the Owner of Lots 5 and 6 or its agents. Application 0440-2002 is currently pending a final determination.

The Trinity Place community titles scheme consists of 5 lots and common property. The community management statement for “Trinity Place” indicates that the Body Corporate and Community Management (Commercial Module) Regulation 1997 (“the Commercial Module”) applies to the scheme.

2.	Interim orders

As outlined above, the Applicant in this matter has sought 13 final orders, and 6 interim orders. At this time, I am solely concerned with the application for interim orders.

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)).

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.

3.	Determination

I will now turn to, and consider each of the interim orders sought by the Applicant individually.

3.1	That any motions carried at the Extraordinary General Meeting of the Body Corporate held on 28 June 2002 be declared void.

In my view, the above order in the terms sought by the Applicant, effectively seeks a final determination of the validity of the motions considered at the extraordinary general meeting of 28 June 2002.

Generally, a determination of the validity of a general meeting, or particular motions considered at a general meeting, is a matter that is considered in the final order to an application. If an interim order is sought or made in relation to motions considered at a general meeting, the interim order would normally be limited to restraining the body corporate or another party from carrying out the disputed resolutions of the body corporate pending final determination of the application.

However, in this case I do not consider that the Applicant has demonstrated that the nature or urgency of the application warrants an interim order. For example, the Applicant has not provided any details regarding which motions are of particular concern and should not be carried out pending a final determination of the application, or details of whether or not the motions in question have already been carried out. I do note however that the Applicant states that at the time of the extraordinary general meeting, “most of the items in the agenda had, at that time been undertaken”. In my view, if resolutions have already been carried out, there is little benefit issuing an interim order in relation to the resolutions.

In addition, I find the supporting grounds to this order sought by the Applicants to be unconvincing. The Applicant seems to express a view that the extraordinary general meeting was unnecessary, and that the Applicant did not have an opportunity to submit agenda items. The Applicant does not seem to argue that it was denied an ability participate in the meeting (perhaps by proxy or by written vote), or that the particular motions considered and carried by the Body Corporate at the meeting were unlawful or otherwise unreasonable.

For these reasons, I intend to dismiss this interim order as sought by the Applicants.

3.2	That the Body Corporate Managers, Body Corporate Administration, be removed as Body Corporate Managers for the scheme.

In my view, while the Act provides adjudicators with power to make orders to resolve disputes about contraventions of the terms of, or the exercise of rights or powers under the terms of, the engagement of a person as a body corporate manager, I do not consider that it is within the intention or terms of the Act for an adjudicator to make an order “removing” a person as the body corporate manager for a scheme, particularly when the application is made by an owner of a lot included in the scheme.

The parties to a body corporate management agreement are generally the body corporate, and the body corporate manager. Individual owners are not normally parties to a body corporate management agreement. If an owner is dissatisfied with the performance of a body corporate manager, they are able to present a motion for consideration by the body corporate proposing that the body corporate take particular action regarding the body corporate management agreement, including that the body corporate enforce or terminate of the agreement. It is then a matter for the body corporate to decide what action, if any, should be taken. Of course it should be noted that throughout this process, both the body corporate and the body corporate manager have particular rights under both the Act, and the principles of contract law.

While the Act specifically contemplates an adjudicator making an order to resolve a dispute about the termination of a body corporate management agreement, in my view, a prerequisite to such an order is that one of the parties to the agreement actually makes a decision to terminate the agreement. The parties to such an application would be the body corporate, and the body corporate manager. An individual owner does not have the capacity to bring such an application pursuant to section 182 of the Act. I do not consider that it is the role of an adjudicator to decide for a body corporate whether or not to terminate an agreement.

For these reasons, I intend to dismiss this order sought by the Applicant. I also note however, that the minutes of the annual general meeting of the Body Corporate held on 30 September 2002 record that although the Body Corporate Manager did not seek to continue in the role, the Applicant’s representative requested that the Body Corporate Manager continue pending determination of applications to this Office. In my view, the position of the Applicant expressed at the meeting makes this interim order sought by the Applicant even more unwarranted.

3.3	That the Commissioner impose such penalty as he may deem fit on the said Body Corporate Managers for Breaches of the Body Corporate and Community Management Act.

While the Act provides penalties for non-compliance with particular provisions, the Act provides no authority for either the Commissioner for Body Corporate and Community Management, or an adjudicator under the Act, to impose penalties for breaches of the Act.

If the Applicant considers that a party has breached a provision of the Act and a penalty should be applied, in my view, it is for the Applicant to pursue the matter in a court of competent jurisdiction. For this reason, I intend to dismiss the application for this interim order as sought by the Applicant.

3.4	That an audit be conducted into the books of account of the Body Corporate Managers, Capitol Body Corporate Administration, into (sic) respect to the books of account for the Community Title Scheme-Trinity Place CTS No 653

Generally, an order requiring a body corporate to engage an auditor to undertake an audit of its financial statements is not an order that will be made at an interim stage in the administration of a dispute resolution application. In my view, a determination of whether or not a body corporate’s records should be audited is properly addressed in the final order to the application, after proper consideration and investigation of the issues has been carried out.

In this case, after reviewing the material presented by the Applicant, I am unclear as to the Applicant’s grounds in support of this order sought. The Applicant has not highlighted defects or irregularities in the accounting processes adopted by the Body Corporate, or Body Corporate Manager.

Further, I note that the minutes of the annual general meeting of 30 September 2002 record that the Body Corporate resolved, (with 5 votes in favour and 0 votes against), not to have its accounts for the 2002-2003 financial year audited.

Given the lack of grounds in support of this order sought by the Applicant, and the fact that the Body Corporate has declined to have its accounts audited for the current financial year, I do not consider that an order requiring the Body Corporate to have its statement of accounts audited is warranted at this time.

3.5	That the Application filed by the owner of Lot 2 dated 22 July 2002 be dismissed with costs

I do not consider that the above is an appropriate order to make, either at an interim or final stage of determining this application. In my opinion, the Applicant in matter 0440-2002 is entitled to have that matter determined on its own merits. I do not consider that it is appropriate for me to make any orders in relation to application 0440-2002 in the context of this current application.

I would also point out that it is my view that the Act does not provide adjudicators with a general capacity to make orders awarding “costs” associated with an application. As such, I do not intend to make any orders in relation to this application awarding legal or other costs associated with the application to either party to the dispute.

3.6	Such further or other orders as the Commissioner may deem meet (sic)

At this time, there are no interim orders that I would make in relation to this application.

4.	Conclusion

For the reasons outlined above, I intend to dismiss the application for interim orders as sought by the Applicant. This matter will now be administered in accordance with the Act and the usual processes undertaken by this office. The application will be determined in dure course.

2n