Village Square [2002] QBCCMCmr 699 (2 December 2002)

RA MeekREFERENCE: 0668-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24715
Name of Scheme:	Village Square
Address of Scheme:	2 Sickle Avenue HOPE ISLAND QLD 4212

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

Jennifer Beth Frank, the owner of lots 65, 245 and 246 and William Fleetwood and Virginia Margaret Fleetwood, the owners of lots 44 and 176


RA MeekI hereby order that the application by Jennifer Beth Frank, the owner of lots 65, 245 and 246 and William Fleetwood and Virginia Margaret Fleetwood, the owners of lots 44 and 176, for interim orders that

1.	A declaration that the EGM of the body corporate held on 24 October 2002 was adjourned after the passing of motion 3 to the date of the next general meeting.
2.	A declaration that until the meeting is reconvened the motions numbered 4 through to 29 on the Agenda for the 24 October EGM have not been passed.
3.	The secretary be directed to forward nomination forms to all owners to elect a person to the position of chairperson of the body corporate

is dismissed.

I further order that -

• the body corporate shall not implement or otherwise act upon any of the resolutions purportedly carried at the EGM of the body corporate held on 24 October, 2002 (the meeting) until a final order to this application is made, this application is withdrawn, or this order is of no effect through operation of law;

• that until a final determination of this application is made, the members of the committee who were members up to the time of the meeting (excepting the position of Brian Otto as Chairperson whose position was vacated pursuant to motion 3) shall continue as members of the committee in their former committee capacity;

• the secretary shall not destroy or otherwise interfere with any of the materials held by her which relate to the meeting, including voting papers and the like.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0668-2002

“Village Square” CMS 24715

The applicants, Jennifer Beth Frank, the owner of lots 65, 245 and 246 and William Fleetwood and Virginia Margaret Fleetwood, the owners of lots 44 and 176, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	A declaration that the EGM of the body corporate held on 24 October 2002 was adjourned after the passing of motion 3 to the date of the next general meeting.
2.	A declaration that until the meeting is reconvened the motions numbered 4 through to 29 on the Agenda for the 24 October EGM have not been passed.
3.	The secretary be directed to forward nomination forms to all owners to elect a person to the position of chairperson of the body corporate.

The Applicants have also sought the following interim order of an adjudicator, quote -

1.	A declaration that the EGM of the body corporate held on 24 October 2002 was adjourned after the passing of motion 3 to the date of the next general meeting.
2.	A declaration that until the meeting is reconvened the motions numbered 4 through to 29 on the Agenda for the 24 October EGM have not been passed.
3.	The secretary be directed to forward nomination forms to all owners to elect a person to the position of chairperson of the body corporate.

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)).

It should be noted that the interim orders sought by the applicants are in the same terms as the final orders sought. Moreover, the interim orders sought are final in their nature and effect.

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 dismissed, 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 objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be dismissed. It is a matter for an adjudicator to determine in respect of each application.

The nature of the matters raised are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submissions from other parties to the dispute, before any order can be made. Accordingly, this application for an interim order is dismissed.

I do intend to make what I consider to be a genuine interim, or injunctive orders, to preserve the status quo until a final determination of this application can be made. I propose to order that –

• The body corporate not implement or otherwise act upon any of the resolutions purportedly carried at the EGM of the body corporate held on 24 October, 2002 (the meeting) until a final order to this application is made, this application is withdrawn, or this order is of no effect through operation of law. Practically, this requires that the body corporate not implement or proceed with any matter the subject of resolutions 4 to 29 inclusive during the intervening period. If the body corporate has already purported to sign agreements based on the authority of the purported resolutions, then I consider that the body corporate should only implement those agreements to the extent that the body corporate is legally bound to do so;

• That until a final determination of this application is made, the members of the committee who were members up to the time of the meeting (excepting the position of Brian Otto as Chairperson whose position was vacated pursuant to motion 3) shall continue as members of the committee in their former committee capacity. This order however does not prevent any member of the committee from resigning their position if they elect to do so. I strongly suggest to the committee that it seek to avoid considering issues of significant contention or dispute involving the body corporate during this period. However this is not an order, and the committee is at liberty to determine matters properly before it;

• That the secretary shall not destroy or otherwise interfere with any of the materials held by her which relate to the meeting, including voting papers and the like. This physical evidence may become very relevant to the subsequent investigation of this application.

To indicate my preliminary view of this dispute, I consider that the validity of the meeting is in issue on three bases, namely –

• The effect of the vacation of the office of the chairperson in consequence of motion 3 being carried; and

• The effect of the alleged loss of order at the meeting following the carrying of motion 3;

• Depending on the outcome of above two issues, whether the outcome of the meeting might be “re-constructed” from a combination of purported minutes and voting records and other information in the possession of the secretary.

This matter will now be investigated in accordance with the usual processes undertaken by this office. Unfortunately, given the large number of owners and consequential cost, this investigation will need to comprise seeking submissions from all owners. The investigation will also include an inspection of the records of the body corporate. A final order regarding 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. n