Casa Del Mar [2003] QBCCMCmr 321 (9 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0775-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30117
Name of Scheme:	Casa Del Mar
Address of Scheme:	44 Moray Street NEW FARM QLD 4005

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

Christine Therese Orazio, the intending owner of lot 2 & Maaike Vromans, the owner of lot 5


RA MeekI hereby order that the application by Christine Therese Orazio, the intending owner of lot 2 & Maaike Vromans, the owner of lot 5, for an interim order to stop registration of the new CMS with the Department of Natural Resources regarding allocation of exclusive use of area H to unit 1, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0775-2002

"Casa Del Mar" CMS 30117

The applicants, Christine Therese Orazio, the intending owner of lot 2 & Maaike Vromans, the owner of lot 5, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Stop registration of the new CMS with the Department of Natural Resources regarding allocation of exclusive use of area H to unit 1 as I was not informed of the meeting when this was voted on.

The Applicants also sought the above order as an interim order of an adjudicator.

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)).

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 in this application 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 is not to say that the applicants allegations are not serious; simply that they cannot be address in the context of an interim order.

I had originally held off making an interim order on the basis that I was awaiting a submission on the making of the interim order from the solicitor for the body corporate. This solicitor requested an extension of the time (to 6 January 2003) for the making of that submission, which I agreed to on the basis that the solicitor would immediately approach the Registrar of Titles with a request to place the registration of the CMS in question in abeyance. Although the extended deadline for submission has closed, no submission is available to me.

I am aware that there are some negotiations regarding this application behind the scenes. However, until such time as the applicants elect to withdraw their application, I am obliged to continued to deal with it, and intend to do so.

All parties should be aware that it is within my power, in the event of the CMS in dispute becoming registered, to order the body corporate to lodge for registration a new CMS in terms I consider to be just and equitable. This may include by deletion of the exclusive use by-law proposing the exclusive use area "H".

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.