Baronnet [2003] QBCCMCmr 406 (4 March 2003)

Last Updated: 10 September 2007

REFERENCE: 0098-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9557
Name of Scheme:	Baronnet
Address of Scheme:	Enderley Avenue Surfers Paradise QLD 4217

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

Cristina Nitopi, the owner of lot 56

I hereby order that the application for an interim order:

1. That the annual general meeting for the body corporate Baronnet held on 27^th November 2003 (sic) be invalidated thus invalidating all motions passed or lost and also that all positions on the committee be declared vacant thus meaning that all budgets, contracts etc would be reverted to the situation as before the annual general meeting until another general meeting is held as soon as possible.

2. That Mrs Fay Waters (owner/investor in Baronnet for 8 years), be appointed to administer the affairs of the complex solely for the purposes of conducting fairly another general meeting as well as sending out new nomination forms for a new committee. Further to prepare fair, reasonable but sufficient new administration and sinking fund budgets and resubmit all other motions as per annual general meeting with appropriate quotes where necessary and in line with the Act.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0098-2003

"Baronnet" CMS 9557

The applicant, Cristina Nitopi, has sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the annual general meeting for the body corporate Baronnet held on 27^th November 2003 (sic) be invalidated thus invalidating all motions passed or lost and also that all positions on the committee be declared vacant thus meaning that all budgets, contracts etc would be reverted to the situation as before the annual general meeting until another general meeting is held as soon as possible.

2. That Mrs Fay Waters (owner/investor in Baronnet for 8 years), be appointed to administer the affairs of the complex solely for the purposes of conducting fairly another general meeting as well as sending out new nomination forms for a new committee. Further to prepare fair, reasonable but sufficient new administration and sinking fund budgets and resubmit all other motions as per annual general meeting with appropriate quotes where necessary and in line with the Act.

Section 225(1) of the Act 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 the supporting grounds, the applicant states that there were serious irregularities in relation to the conduct of the annual general meeting, which, she contends, justify the invalidation of the entire meeting, and the appointment of an administrator to call another general meeting, including fresh committee elections. The applicant’s view is perhaps best summarised in the following statement, included in the letter forwarded to all owners garnering support for the application:

"In our view there is enough evidence that some members of the committee wrongly misled owners into voting for changes, huge increased levies, increased wages and free contracts which has given financial benefits to some but for which the owners of Baronnet are paying for."

Following receipt of this letter, 21 other owners in the scheme stated that they wished to support the intervention of the Commissioner’s office in relation to the orders sought above.

Submissions were sought, and received, from the newly elected body corporate manager and from the body corporate committee.

In this particular decision I am solely concerned with the application for interim orders. In any consideration of an application for 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 that 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.

The interim orders sought by the applicant effectively require a final determination of the matters in dispute. In my view, it will be necessary to investigate these matters before a proper determination of the issues can be made. As a further consideration, I do not consider that the applicant has provided any convincing reasons regarding the urgency of these matters that would warrant the making of interim orders. Certainly lodging an application two and a half months after the meeting about which the orders are sought is not suggestive of any urgency.

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.