Imperial Surf [2003] QBCCMCmr 488 (24 April 2003)

Last Updated: 10 September 2007

C G YOUNGREFERENCE: 0254-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9742
Name of Scheme:	Imperial Surf
Address of Scheme:	72 - 80 Esplanade SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Duncan A LEE as nominee for Beachbourne Pty Ltd, the owner of Lots 1 and 3,

C G YOUNGI hereby order that the body corporate must not implement or otherwise act upon the resolution passed in respect of Motion 16 at the annual general meeting held on 8 April 2003 for the installation of a PABX telephone system, pending determination of the final order to this application.

I further order that this interim order has effect for a period of three months from the date of this order. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0254-2003

"Imperial Surf" CMS 9742

The applicant, Beachbourne Pty Ltd of Lots 1 and 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That motion 16 passed at the Annual General Meeting held on 8^th April 2003 be declared void."

The applicant has also made application for the following interim order –

"The Body Corporate be prohibited from proceeding with the installation of the PABX until the determination of this dispute."

JURISDICTION:

This is a dispute between an owner (the applicant Beachbourne Pty Ltd), and the body corporate (the respondent), concerning the validity of a resolution for the purchase and installation of a PABX telephone system to service lots in the scheme. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

Section 279 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 284 of the Act).


APPLICATION:
Section 247 of the Act, the requirement to seek submissions from interested parties may be dispensed with and the application for an interim order dealt with directly by an adjudicator. That course is considered appropriate in this instance as the proposed purchase is in excess of $60,000 and if the resolution is implemented but later found to be invalid, withdrawal from the purchase (and perhaps an installation agreement) may be difficult and/or costly for the body corporate.

The applicant states that the resolution is inconsistent with the legislation in a number of instances. Firstly, that individual handsets are part of the purchase package and as these are destined to be items of "utility infrastructure" within the lots, they are the individual responsibility of owners to purchase and install (and maintain). Secondly, the resolution does not include any costing for: the installation of the system; the complementary "computer and call" software; and the personnel to operate the system.

DETERMINATION:
I am satisfied that in the circumstances there are reasonable grounds, for the reasons set out above, that I issue an interim order to prevent the matter proceeding until it has been investigated, including seeking a response from the body corporate and information from other relevant parties.

The matter will now be investigated in accordance with the usual processes undertaken by this office, and a final order to the application will be made in due course.
Section 279(2) of the Act provides –

279 Interim orders in context of adjudication

(2) An interim order--

(a) has effect for a period (not longer than 1 year) stated in the order; and

(b) may be extended, varied, 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--

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or

(iii) a final order is made by an adjudicator to whom the application is referred.

In my order I have provided that the interim order has effect for a period of three months. All parties should be aware of this section and its effect on the interim order. In particular, it is the responsibility of the applicant to request an extension to the interim order period should it become necessary. This office will not automatically renew an interim order.2n