Vielpa [2003] QBCCMCmr 245 (25 November 2003)

Last Updated: 17 May 2005

REFERENCE: 0673-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13821
Name of Scheme:	Vielpa
Address of Scheme:	13 Buckland Road NUNDAH QLD 4012

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

Valerie Elizabeth Wilson, the owner of lot 4

I hereby order that the application by Valerie Elizabeth Wilson, the owner of lot 4, for interim orders, quote - A. To determine the legitimacy of the appointment of Delrey Pacific Pty Ltd, and some motions approved at an EGM of Vielpa held on 28th October 2003; B. That no non-urgent repairs, maintenance and unnecessary expenditure occur until available / emergency (non-accrued) component of the sinking fund should not be less than $4500 at any time. Persons on my limited income cannot afford excessive and unnecessary expenditure and this is a low cost maintenance property, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0673-2003

"Vielpa" CTS 13821

The applicant, Valerie Elizabeth Wilson, the owner of lot 4, has sought the following order of an adjudicator under the provisions of the Body Corporate and Community Management Act 1997 (the Act), quote -

That the appointment of Delray Pacific Pty Ltd as manager be assessed according to the requirements of (the Act).
That no unnecessary and excessive expenditure occurs until sinking fund balance improves.
That proprietors conduct Vielpa ... affairs according to the requirements of the BCCM.
That the late payment fee of $27.50 charged to my account be removed.
That the correct anniversary date of 10^th July resulting from a Referee’s order be used.
That the chairman provide proof of her claims ... that –

1. I did not know how to assess maintenance costs in 2002;
2. The paint work in 1995 was not satisfactorily completed;
3. To raise the matter of possible commission receivable by a manager is "libellous unnecessary and paranoid".
4. I lacked understanding of the role of AD Body Corporate Managers;
5. "We are paying increased levies to have the body corporate managed externally due to the constant whinging, complaining and bickering from Miss Wilson which has led to both tenants and three owners (that I know of) selling their property";
6. I am miserable and unhappy;
7. Levies were increased in 2002 budget to pay for the painting;
8. To suggest the painting was not necessary for several more years was ludicrous.

That the chain be removed from the gate to my unit.

The applicant has also sought interim order as follows –

C. To determine the legitimacy of the appointment of Delrey Pacific Pty Ltd, and some motions approved at an EGM of Vielpa held on 28^th October 2003;
D. That no non-urgent repairs, maintenance and unnecessary expenditure occur until available / emergency (non-accrued) component of the sinking fund should not be less than $4500 at any time. Persons on my limited income cannot afford excessive and unnecessary expenditure and this is a low cost maintenance property.

Section 279(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 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 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 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 refused. It is a matter for an adjudicator to determine in respect of each application.

The applicant has included a statement as part of her grounds headed Reasons for Interim Order. I consider that there is nothing in that statement which explains or justifies the making of an interim order. The two matters in respect of which the applicant has sought interim orders are both the subject of final orders sought by the applicant and I conclude that they should be viewed in that context, and not as interim orders.

There is no aspect of urgency associated with this application that requires that an interim order be made. Moreover, 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.

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.