Il Villaggio [2003] QBCCMCmr 97 (3 September 2003)

Last Updated: 17 May 2005

REFERENCE: 0583-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28518
Name of Scheme:	Il Villaggio
Address of Scheme:	24 Radan Street, SUNNYBANK HILLS QLD 4109

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Teck Ng, the co-owner of lot 40

I hereby order that the application by Teck Ng, the co-owner of lot 40, for interim orders that – A declaratory order that the body corporate for Ill Vilaggio CTS 28518 has contravened section 82(6)(b) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module) by unreasonably withholding its consent to the assignment of management rights at the AGM of 7 August 2003 and continuing to the date of this application; and An order that the secretary of the body corporate, Richard Holmes of Barard Management Pty Ltd be appointed Administrator and to consent to the proposed assignment and to affix the seal of the body corporate to the Deed of Assignment and Lot Owner Deed, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0583-2003

"Il Villaggio" CTS 28518

The applicant, Teck Ng, the co-owner of lot 40, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

A declaratory order that the body corporate for Ill Vilaggio CTS 28518 has contravened section 82(6)(b) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module) by unreasonably withholding its consent to the assignment of management rights at the AGM of 7 August 2003 and continuing to the date of this application; and
An order that the secretary of the body corporate, Richard Holmes of Barard Management Pty Ltd be appointed Administrator and to consent to the proposed assignment and to affix the seal of the body corporate to the Deed of Assignment and Lot Owner Deed.

The applicant has also sought interim orders in the same terms.

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 any consideration of an application which seeks the making of 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 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 which 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 in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the determination of 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 objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be dismissed. It is a matter for an adjudicator to determine in respect of each application.

The nature of the matters raised in this application are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submissions from other parties to the dispute, before any order can be made. Accordingly, this application for an interim order is dismissed.

Whilst I appreciate that the applicant seeks an early resolution of this dispute, the circumstances do not allow this. 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.