Paloma [2003] QBCCMCmr 11 (8 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0435-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9524
Name of Scheme:	Paloma
Address of Scheme:	93 - 97 Albatross Avenue MERMAID BEACH QLD 4170

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Janice Marie O’Connor, the owner of lot 3

I hereby order that the application by Janice Marie O’Connor, the owner of lot 3 for an interim order to restrict the chairperson and committee members of Paloma from unauthorised spending of body corporate funds and to conform with the requirements set out in the Body Corporate and Community Management Act 1997, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0435-2003

"Paloma" CTS 9524

The applicant, Janice Marie O’Connor, the owner of lot 3 has sought an interim order to restrict the chairperson and committee members of Paloma from unauthorised spending of body corporate funds and to conform with the requirements set out in the Body Corporate and Community Management Act 1997 (the Act).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

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 279(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. 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 order sought by the applicant, thought described as "interim" is not interim or injunctive in nature. Rather it seeks to impose a general prohibition on the committee regarding what the applicant considers is "unauthorised spending" by it. The nature of the application is such that it can not be effectively addressed or dealt with by way of an interim order. Rather, it requires 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.

Moreover, it seems to me that the basis of this application is already the subject of another application to this office. That application is application 408 of 2003 made by Helen Kable. These two applications involve similar considerations.

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.