Holliday Village [2003] QBCCMCmr 384 (14 February 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0091-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11949
Name of Scheme:	Holiday Village
Address of Scheme:	18 Thorn Street KANGAROO POINT Q 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by KBL Investments Pty Ltd, the owner of 8 lots in the scheme.



RA MeekI hereby order that the application by KBL Investments Pty Ltd, the owner of 8 lots in the scheme, for interim orders -

1.

That the document entitled "Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared beyond the power of the "interim" holding committee, as appointed by order of the Adjudicator dated 9th October 2002 to issue.

2.

That it be declared that any resolution purportedly passed at any meeting held on 18th February 2003, or at other time pursuant to the document entitled Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared invalid and unenforceable, and not made during any lawfully constituted general meeting of the body corporate,

is dismissed.

I further order that all resolutions of the body corporate of Holiday Village purportedly carried at the EGM held on 18 February 2003, if any, shall not be implemented or otherwise acted upon until a final order to this application is made, this application is withdrawn, or this order is of no effect through operation of law. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0091-2003

"Holiday Village" CMS 11949

The applicant, KBL Investments Pty Ltd, the owner of 8 lots in the scheme, has sought the following "interim and final" orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Interim and final orders as follows:-

1.	That the document entitled "Notice of EGM of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard be declared beyond the power of the committee (as appointed by order of the Adjudicator dated 9th October 2002) to issue.
2.	That it be declared that any resolution purportedly passed at any meeting held on 18th February 2003, or at other time pursuant to the document entitled "Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared invalid and unenforceable, and not made during any lawfully constituted general meeting of the body corporate.
3.	That final orders be made as sought in the Application dated 20th January 2003 by KBL Investments Pty Ltd, being application no. 54 of 2003.

Question 11

3.

That the document entitled "Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared beyond the power of the "interim" holding committee, as appointed by order of the Adjudicator dated 9th October 2002 to issue.

4.

That it be declared that any resolution purportedly passed at any meeting held on 18th February 2003, or at other time pursuant to the document entitled Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared invalid and unenforceable, and not made during any lawfully constituted general meeting of the body corporate.

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.

It is noted that both of the interim orders sought are in fact final in the relief they request. Even if I were minded to consider the making of final orders in the context of an interim application, I would not do so without first seeking submissions in response to the application from the named respondent; in this case the body corporate. This is an absolute requirement given that I am required to observe natural justice when investigating an application (see section 220(3) of the Act).

The practicalities regarding this application are that I received it on Friday 14 February 2003 to consider, notwithstanding that the notice of meeting is in fact dated 27 January, 2003. The meeting which the application seeks orders in respect of is to be held on Tuesday 18 February 2003. In reality I have been given two working days to investigate the application. This is insufficient time to require and obtain a submission in response to the application. Moreover, without a submission, I will not contemplate the making of final orders as sought.

Given all this, the only interim order which I consider possible and appropriate to make is a genuine interim order; namely to order that all resolutions carried at the purported meeting shall not be implemented or otherwise acted upon until a final order to this application is made, this application is withdrawn, or this order is of no effect through operation of law. Accordingly, I have ordered to this effect, and will consider the validity of the meeting proper, and the final relief sought, in the context of make a final order to this application. Clearly, the meeting can proceed as scheduled, however no resolution carried at the disputed meeting can be implemented, or otherwise given effect to, until a final order to this application is made. The order has the effect of maintaining the status quo, until a final determination can be made.

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.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order. n