Maria Creek Estate [2003] QBCCMCmr 36 (25 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0433-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	51 Rebecca Jane Parade KURRIMINE BEACH QLD 4871

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Peter Hablethwaite and Maria Hablethwaite, the co-owners of lots 3, 6, 7, 8 and 9

I hereby order that the application by Peter Hablethwaite and Maria Hablethwaite, the co-owners of lots 3, 6, 7, 8 and 9, for interim orders – a) That no action be taken re any resolution passed at the AGM of 29.5.03 pending final order b) That Ms Kite be suspended as our administrator other than to pay accounts pending final order, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0433-2003

"Maria Creek Estate" CTS 25253

The Applicants, Peter Hablethwaite and Maria Hablethwaite, the co-owners of lots 3, 6, 7, 8 and 9, have sought the following orders of an Adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

a) To invalidate the AGM of 29.5.03
b) To call an amending AGM
c) To remove Ms P Kite as administrator and appoint a registered liquidator or a chartered accountant in her stead s.227(2).

The applicants have also sought interim orders, quote –

c) That no action be taken re any resolution passed at the AGM of 29.5.03 pending final order
d) That Ms Kite be suspended as our administrator other than to pay accounts pending final order.

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.

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 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.

Whilst the interim order as sought by the applicants is on its face, injunctive in nature, I consider that the applicants have delayed in first the making of the application, and secondly, in providing information necessary to proceed with their application, such that any considerations of urgency are negated. Whilst the meeting was held on 29 May 2003, the application was not received until 27 June, and thereafter, it took a further month almost (to 21 June) for the applicants to provide further information requested of them. I conclude that in the circumstances, the delay operates against the making of the interim orders that have been sought.

In addition, it is not possible in my view, to draw a distinction between grounds which would indicate that an interim order is required in order to prevent particular actions, and grounds which are relied on to establish or evidence the final orders sought. Consequently, to make an assessment of the merits of the making of the requested interim orders is very difficult, and requires basically an assessment and determination of the substantive parts of the application. This could only be done after the making of submissions by other affected parties. In these circumstances, I decline to make the interim orders sought by the applicants, and instead intend to proceed immediately with the investigation of the application proper.

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.