Weimar [2004] QBCCMCmr 547 (10 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0699-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13555
Name of Scheme:	Weimar
Address of Scheme:	59 Errol Avenue, PARADISE POINT QLD 4216

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

Geecorp Pty Ltd, the owner of lot 4

I hereby order that the application by Geecorp Pty Ltd, the owner of lot 4, for an interim order calling for an EGM, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0699-2004

"Weimar" CTS 13555

The applicant, Geecorp Pty Ltd, the owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

An order for an EGM be held for the purposes of appointing a professional body corporate manager and to appoint the members of the committee and to vacate such appointments as currently exist, as per attached letter dated 2/9/04.

The applicant has also sought the following interim order, quote –

An order calling for an EGM.

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.

It seems to me that the interim order sought in this application is not interim in nature. It is not injunctive in any way. Rather, it seeks the same relief as the final order sought, but on an interim basis. There is no pressing urgency in my view for the making of the final order sought.

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 investigation, including submissions from the other parties to this dispute (the body corporate as an entity and other owners), 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.