The Dees [2003] QBCCMCmr 12 (8 July 2003)

Number of Scheme:	14477
Name of Scheme:	The Dees
Address of Scheme:	12 Murlong Crescent PALM BEACH QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Michael William Lockhart & Dorothy Joy Lloyd, the co-owners of lot 1

I hereby order that the application by Michael William Lockhart & Dorothy Joy Lloyd, the co-owners of lot 1, for an interim order for the body corporate to cease spending any more money on the carport at "The Dees", 12 Murlong Crescent, Palm Beach either for maintenance or in seeking to have it approved by the council until the matters requested in the above orders are resolved, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0454-2003

"The Dees" CTS 14477

The applicants, Michael William Lockhart & Dorothy Joy Lloyd, the co-owners of lot 1, have sought an order of an Adjudicator under the Body Corporate and Community Management Act (the Act) quote -

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.

In my view there is no aspect of urgency requiring the requested interim order be made. The fact that the applicant has waited some two years to make the application suggests that the matter is not urgent. Moreover, there is no suggestion that unreasonable costs are being incurred at the present time. The question of any apportionment of costs (if necessary) will be considered in the context of the final order.

Of greater significance to my consideration of this matter is the time it has taken for the application to be made. It is noted that this application seeks to invalidate motions resolved at a general meeting of the body corporate in excess of 2 years ago. The Act provides for time limits on certain applications. Section 242 provides –

242 Time limit on certain applications
(1) This section applies to an application for an order declaring void--
(a) a meeting of the committee for the body corporate, or a general meeting of the body corporate; or
(b) a resolution of the committee or body corporate; or
(c) the election of an executive or other member of the committee.
(2) The application must be made within 3 months after--
(a) if subsection (1)(a) applies--the meeting; or
(b) if subsection (1)(b) applies--the meeting at which the resolution was passed or purported to be passed; or
(c) if subsection (1)(c) applies--the meeting at which the executive or other member was elected.
(3) However, if the making of the application does not comply with subsection (2)--
(a) the commissioner must deal with the application (including making a dispute resolution recommendation for the application) as if the making of the application complied with subsection (2); and
(b) an adjudicator to whom the application is referred for specialist or department adjudication may, for good reason, waive the non-compliance.

It is clear from this section that the application is substantially out of time, and the question arises whether there is "good reason" to waive the non-compliance. Whilst the applicants have address this in their grounds, I intend to invite the submission of owners to this question, before considering it in the context of my final order. However, all parties should be aware that it is a very real issue given the length of time which has elapsed relative to the time limit specified in the section.

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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Dees [2003] QBCCMCmr 12 (8 July 2003)