Oceana on Broadbeach [2003] QBCCMCmr 576 (16 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0390-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24163
Name of Scheme:	Oceana on Broadbeach
Address of Scheme:	100 Old Burleigh Road BROADBEACH QLD 4218

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

Stephen Charles Searle, the owner of lot 98

I hereby order that the application for an order that the resolution at the extraordinary general meeting held on 12 June 2003 be stayed or, in the alternative, set aside, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0390-2003

"Oceana on Broadbeach" CTS 24163

The applicant, Stephen Charles Searle, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

1) The resolution at the extraordinary general meeting held on 12 June 2003 be set aside

2) The body corporate forward an explanatory memorandum to lot owners informing them of, firstly, the orders made by the Court of Appeal on 4 June 2003 in relation to the body corporate’s application for leave to appeal No. 2838/2003, and secondly, the costs to the body corporate of the appeal either succeeding or failing.

The applicant has also sought an interim order of an adjudicator that:

1) The resolution at the extraordinary general meeting held on 12 June 2003 be stayed or, in the alternative, set aside.

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 allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

In the supporting grounds the applicant states that he is seeking an interim order due to the body corporate having commenced an appeal from the District Court to the Court of Appeal which is to be heard by the Court of Appeal on 16 June 2003. The applicant further states that this will potentially incur significant costs to the applicant and the body corporate which can be avoided by an interim decision being made.

The applicant further states that the body corporate has failed to: draft a properly worded motion; provide proper notice to lot owners prior to voting which would enable them to make a fully informed decision about the subject matter of the vote; amend the motion prior to putting it to a vote as the subject matter of the motion has changed since its drafting on 16 May 2003; quote an accurate amount for expenditure sought to be authorised, noting also that costs orders were made against the body corporate by the Court of Appeal on 4 June 2003.

The applicant provided copies of various appeal documents, and correspondence between his solicitors and the solicitors for the body corporate, by way of background to this dispute.

On 19 September 2002, an adjudicator made the following order in relation to an application by the body corporate:

I hereby order that the application by the body corporate for the following orders:-

1. A declaration pursuant to s.62(1) of the Body Corporate and Community Management Act 1997, that an easement exists in favour of the common property against lot 98 for the supply of utility infrastructure to the common property;

2. In the alternative, a declaration pursuant to section 125(1)(a) of the Body Corporate and Community Management Act 1997 that a person authorised by the body corporate be entitled to enter Lot 98 for the purposes of carrying out maintenance (window cleaning) to the common property;

3. That the body corporate be permitted to have access to the rooftop of lot 98 of the scheme and that such access be limited to window cleaning purposes to the exterior of the building;

4. All necessary orders and directions to give effect to the above declaration;

5. Such further or other orders as the commissioner or adjudicator thinks fit;

is dismissed.

The above order was appealed to the District Court at Southport on 29 October 2002. On 28 February 2003 His Honour Judge Robin QC delivered the following judgement:

"Appeal dismissed with costs. Adjudicator’s order confirmed."

On 28 March 2003 the body corporate filed an application in the Court of Appeal seeking leave to appeal against the judgement. The return date for the application was 4 June 2003. The body corporate did not obtain authorisation under section 312 of the Act before filing the application in the Court of Appeal. On 4 June 2003, the Court of Appeal heard the application. It ordered as follows:

The order of the Court is that:

1. Application struck out;

2. Applicant to pay 1^st respondents costs of today’s application for the adjournment;

3. Material filed in this application is to be material filed in any future applications for extensions of time and leave to appeal against the decision of His Honour Judge Robin QC of 28 February 2003, filed on or before 13 June 2003;

4. Order that the costs of this application be the 1^st respondents costs of any such further applications; and

5. In the event that there are no such further applications the applicant is to pay the 1^st respondents costs of this application for leave to appeal to be assessed.

On 12 June 2003, at an extraordinary general meeting convened for that purpose, the body corporate resolved by special resolution to authorise the application for leave to the Court of Appeal, and to proceed with the application and appeal, if leave were granted, as if the body corporate’s approval had been given prior to the filing of the application. On that day, the body corporate filed a fresh application to the Court of Appeal, and the matter is set down for today’s date, 16 June 2003.

The applicant complains of the fact that the body corporate did not advise owners at the extraordinary general meeting on 12 June 2003 that the circumstances had changed since it drafted the motion seeking retrospective authorisation on 16 May 2003. The changed circumstances were that the Court of Appeal had, on 4 June 2003, dismissed the application for leave to appeal. However, the Court of Appeal clearly contemplated that a further application for leave to appeal would be lodged, in the event that the motion to be considered by the body corporate on 12 June 2003 was carried, as can be seen by the further orders made on 4 June 2003.

I share the applicant’s concern that the body corporate was not informed prior to the meeting on 12 June 2003 of the orders made by the Court of Appeal on 4 June 2003. In my view, however, these are matters which should properly, and no doubt will, be argued before the Court of Appeal at the hearing this morning.

I propose to dismiss the application for an interim order. It may well be that the application for a final order becomes superfluous, depending on the outcome of the application before the Court of Appeal this morning. The application will be further considered, upon receipt of the Court’s order.