Jadon Place [2003] QBCCMCmr 479 (24 April 2003)

Last Updated: 10 September 2007

DJ ReardonREFERENCE: 0255-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11184
Name of Scheme:	Jadon Place
Address of Scheme:	31 Hooker Drive BROADBEACH QLD 4218

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

Margaret Thompson, a Co-owner of Lot 9 and Colin Lamont, a Co-owner of Lots 7, 8 and 16

DJ ReardonI hereby order that the application for interim and final orders that a particular nomination for committee membership not be included on a ballot paper for the upcoming annual general meeting of the Body Corporate, is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0255-2003

"Jadon Place" CTS 11184

1. Orders sought in the application

The Applicants, a Co-owner of Lot 9, and a Co-owner of Lots 7, 8 and 16 have sought the following adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"I seek an order that Mrs Jaggers nomination be declared invalid and the Secretary instructed not to put the name on the ballot paper for the forthcoming AGM."

The Applicant has sought the above as both interim and final orders.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about--

(a)	a claimed or anticipated contravention of the Act or the community management statement; or
(b)	the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or
(c)	a claimed or anticipated contractual matter about--
(i)	the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii)	the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator’s order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 279(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.

2. Scheme details

The "Jadon Place" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 20 March 1981. A new community management statement for "Jadon Place" was recorded on 20 July 1999. The community management statement indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module") applies to the scheme.

"Jadon Place" consists of 16 lots and common property. However, it should also be noted that "Jadon Place" is the subject of a time-share arrangement, whereby each lot is owned by a number of people as tenants in common.

3. Application details

A Co-owner of Lot 9 originally made this dispute resolution application on 15 April 2003. On 17 April 2003, a staff member of this Office contacted the Co-owner of Lot 9 on behalf of the Commissioner for Body Corporate and Community Management ("the Commissioner") and requested the Co-owner of Lot 9 to provide further details and clarification of the application.

The Co-owner of Lot 9 provided the information requested in a letter dated 19 April 2003, which was received as part of a facsimile from the Co-owner of Lots 7, 8 and 16 received on 22 April 2003. In this material, the Co-owner of Lot 9 requested that the Co-owner of lots 7, 8 and 16 be joined as a co-applicant to the application. The Co-owner of Lots 7, 8 and 16 consented to being included as a co-applicant, and the application was amended accordingly.

The Commissioner decided that the nature and urgency of the circumstances described in the application were such that the matter should be referred to an adjudicator for consideration for an interim order (section 247(1) and (2)). The Commissioner referred the application to me for consideration for an interim order, notwithstanding that notice of the application had not been given, and neither the Body Corporate nor affected persons had been afforded an opportunity to make submissions about the application (section 247(3)).

I have decided to consider the application for an interim order without reference to the Body Corporate, or any other affected persons. As will be outlined below, I have come to the view that this application is misconceived, and should be dismissed.

4. Matters in dispute

This dispute resolution application concerns nominations for committee positions to be decided at an upcoming annual general meeting of the "Jadon Place" Body Corporate. From other dispute resolution applications concerning "Jadon Place" I understand that the financial year for the scheme ended on 31 March 2003. Therefore, in accordance with section 58 of the Accommodation Module, the annual general meeting should be called and held by 30 June 2003.

From the application, I understand that Mr Brian Jaggers and Mrs Wilma Jaggers, Co-owners of Lot 5 have been nominated for committee membership. The Applicants have expressed concern that section 11(5) of the Accommodation Module will be breached if both Mr and Mrs Jaggers are elected as members of the Committee. Section 11(5) provides that "Only 1 co-owner of a lot can be a member of the committee, on the basis of ownership of the lot, at a time".

5. Interim orders

In any consideration of an application that seeks the making of an interim order, it is necessary to determine 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.

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 expeditious, and objective consideration, then the request for an interim order may be refused. It is a matter for an adjudicator to determine in respect of each application.

Due to the proximity of the annual general meeting of the Body Corporate and the need to distribute the notice of annual general meeting with ballot papers, I have decided that the circumstances of the application warrant the matter being considered for an interim order.

6. Determination

While I accept that the Applicants are correct in identifying section 11(4) as imposing a restriction on co-owners of a lot being members of a body corporate committee at the same time, I disagree with the Applicants’ view that this restricts the nomination process. In my view, all properly nominated candidates should be included on the ballot paper.

At this point it is by no means certain that both Mr and Mrs Jaggers will be successful in their nominations for committee membership, therefore their nominations do not in my opinion constitute a breach of section 11(4). If and when more than one co-owner of a lot is elected to the Committee, the Body Corporate will at that point need to consider and apply section 11(4). If a dispute arises about the composition of the committee after the election, an interested party would be entitled to make a further dispute resolution application to this Office.

For the above reasons, I have decided to dismiss the application for both interim and final orders as sought by the Applicants. It is not intended to seek further submissions, or to issue a further order regarding this application.