Indigo Blue Beachside Residences [2003] QBCCMCmr 89 (27 August 2003)

Number of Scheme:	30961
Name of Scheme:	Indigo Blue Beachside Residences
Address of Scheme:	186 The Esplanade BURLEIGH HEADS QLD 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by John Scutt, a member of the Body Corporate Committee, and Co-owner of Lot 25

I hereby order that the Body Corporate for Indigo Blue Beachside Residences community titles scheme 30961 shall not carry out any resolutions made at the committee meeting held on 15 August 2003, pending a final determination of this application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0561-2003

"Indigo Blue Beachside Residences" CTS 30961

The Applicant, a Co-owner of Lot 25, and a member of the Body Corporate Committee, has sought the following adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

The Applicant has also sought the following interim adjudicator’s order, quote-

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

(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.

The "Indigo Blue Beachside Residences" community titles scheme was created pursuant to a building format plan of subdivision. The scheme consists of 44 lots, and common property. The community management statement for "Indigo Blue Beachside Residences" indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module") applies to the scheme.

This dispute resolution application was made on 25 August 2003. In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management ("the Commissioner") has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. The Commissioner has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application (section 247(3)).

From the material before me, I understand that this dispute resolution application concerns a committee meeting held on 15 August 2003 ("the meeting"). The Applicant has provided a copy of the notice of the meeting, including the agenda, dated 6 August 2003. The agenda for this meeting describes a wide range of matters for consideration by the committee.

According to the information before me, the Applicant is a member of the committee. The Applicant disputes the validity of the meeting, and decisions made by the committee at the meeting, on the basis that the other members of the committee would not allow him to participate in the meeting by way of conference telephone call. Unfortunately, due to time constraints^[1], it has not been possible to invite the Committee to make a submission about the matter prior to my consideration of the application for an interim order.

At this time, I am primarily concerned with the application for an interim order. 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 279(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.

In the material, the Applicant has stated that the Committee’s decision regarding the erection of a street sign is scheduled to take place on Monday, 1 September 2003. Also from the material, I understand that the location of the sign (costing in excess of $10,000) is a contentious matter within the Body Corporate.

In the circumstances, I am satisfied that the nature and urgency of the matters raised in the application warrant consideration for an interim order.

In the supporting grounds to the application, the Applicant states that on 12 August 2003 he advised the Body Corporate Chairperson and Secretary that he was not able to attend the 15 August 2003 committee meeting in person (due to prior commitments in Sydney), and requested to be included in the meeting by way of conference telephone call.

The Applicant has provided a copy of an email of 14 August 2003, that he sent to the Body Corporate Chairperson (and apparently, other committee members) reiterating his request to be included in the committee meeting by way of conference call. In the email, the Applicant goes on to state that if it is not possible to conduct a conference call, then he requests that the committee allow him to vote on the various matters by facsimile.

The Applicant has provided a reply to the 14 August 2003 email, apparently from the Body Corporate Chairperson stating "I have a phone that works on speaker. I hope this is suitable. If it doesn’t work I shall arrange for you to vote by fax."

From the material however, it appears that at the commencement of the meeting, the majority of committee members decided not to allow the Applicant to participate in the meeting by conference call. The Applicant states that as a result, he was excluded from voting on important matters being considered by the committee.

The legislation makes no specific provision allowing members of body corporate committees to participate in committee meetings by way of conference telephone call or facsimile. Rather, the legislation simply seems to contemplate committee members attending meetings personally, or by proxy (see section 31(1)(a) of the Accommodation Module).

Regardless of whether a committee member may participate in a committee meeting by telephone call or facsimile, in this case, I am concerned that it appears that the Applicant was positively led to believe that he would be permitted to participate in the meeting either by telephone or facsimile, until the meeting had actually commenced. It seems to me that it would have been virtually impossible at this point for the Applicant to exercise his statutory right to participate in the meeting by making arrangements to either attend the meeting personally, or appoint a proxy to act on his behalf at the meeting.

On this basis, I consider that it is arguable that the Applicant was unfairly excluded from voting at the meeting. However, I do not consider that it would be reasonable for me to make a final determination of this issue at this time, given that the Committee has not had proper notice of the application, or an opportunity to make a submission about the application. Notwithstanding, I do consider that the Applicant has raised sufficient basis for an interim order restricting the Body Corporate from taking further steps to carry out any of the Committee’s resolutions of 15 August 2003, until this application is finally determined.

I have made an interim order restricting the Body Corporate from carrying out resolutions of the Committee made at the 15 August 2003 meeting.

All parties should note the provisions of section 279(2) of the Act, which provides that -

application is referred."

All parties should be aware of this section and its effect on this interim order. In particular, the Applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2y

Finally, I wish to make it clear that the issue to be decided in this dispute resolution application is simply whether or not the Applicant has improperly been excluded from participating in the 15 August 2003 committee meeting. I do not intend to make any findings regarding the merits of matters decided at the meeting. If an owner wishes to seek orders concerning the merits of the particular matters considered at the meeting, they will need to make a further application, accompanied by full details of their objections to those matters.

^[1] According to the Applicant, one of resolutions of the meeting is scheduled to be carried out on Monday, 1 September 2003.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Indigo Blue Beachside Residences [2003] QBCCMCmr 89 (27 August 2003)