Barkool [2004] QBCCMCmr 102 (17 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0093-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5543
Name of Scheme:	Barkool
Address of Scheme:	QUEENSLAND

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Louise Maree Spiteri, the owner of lot 1

I hereby order that the application by Louise Maree Spiteri, the owner of lot 1, for interim orders as set out in her application is dismissed for the reason that I am not satisfied, on reasonable grounds, that an interim order is necessary or appropriate given the nature and urgency of the circumstances to which the application relates.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0093-2004

"Barkool" CTS 5543

The applicant, Louise Maree Spiteri, the owner of lot 1, has sought a list of orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act). The applicant has also requested and paid the application fee for an interim order.

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) 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.

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, 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 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 refused. It is a matter for an adjudicator to determine in respect of each application.

There is no aspect of urgency associated with this application that requires that an interim order be made. Moreover, the nature of the matters raised are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submission from the other party to the dispute, before any order can be made. Accordingly, this application for an interim order is dismissed.

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.