Gazelle Villas [2003] QBCCMCmr 405 (4 March 2003)

Last Updated: 10 September 2007

RA MeekREFERENCE: 0126-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21183
Name of Scheme:	Gazelle Villas
Address of Scheme:	93-97 Logan Street BEENLEIGH Q 4207

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

Barry Morton Scott, the owner of lot 17, Douglas Alan Holding, the owner of lot 67, and Edward Franz Reye, the owner of lot 68

RA MeekI hereby order that the application for interim orders by Barry Morton Scott, the owner of lot 17, Douglas Alan Holding, the owner of lot 67, and Edward Franz Reye, the owner of lot 68 that:-

1. To invalidate the AGM called by Complete Body Corporate Services (CBS) and Kim Elliott;

2. Terminating the services of CBS and Kim Elliott as body corporate manager and secretary respectively;

3. Authorising and empowering the committee of B Scott, E Reye and D Holding to call a new AGM and prior to that call for new motions and nominations for committee;

4. An order recognising that the actions of CBS and Kim Elliott have been contrary to the interests of the body corporate and that as a direct consequence these present applicants and the body corporate have been put to unnecessary expense;

is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0126-2003

"Gazelle Villas" CMS 21183

The applicants Barry Morton Scott, the owner of lot 17, Douglas Alan Holding, the owner of lot 67, and Edward Franz Reye, the owner of lot 68, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking an order to achieve the following outcomes:-

1. To invalidate the AGM called by Complete Body Corporate Services (CBS) and Kim Elliott;

2. Terminating the services of CBS and Kim Elliott as body corporate manager and secretary respectively;

3. Authorising and empowering the committee of B Scott, E Reye and D Holding to call a new AGM and prior to that call for new motions and nominations for committee;

4. An order recognising that the actions of CBS and Kim Elliott have been contrary to the interests of the body corporate and that as a direct consequence these present applicants and the body corporate have been put to unnecessary expense.

The applicants are also seeking interim orders in the same terms as the final orders sought above.

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 applicants have sought final orders by way of interim relief. There is nothing injunctive in the nature of the relief sought. Rather, the applicants seek a final resolution of the dispute at an interim stage. 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 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. n