Galileo Tower [2004] QBCCMCmr 568 (18 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0717-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14193
Name of Scheme:	Galileo Tower
Address of Scheme:	12 Mullens Street HAMILTON Q 4007

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

Carmford Pty Ltd, the owner of Lot 7; Brezville, the owner of Lot 8; and Peachbroom Pty Ltd, the owner of Lot 10,

I hereby order that the application for the following interim order – That the body corporate may not act on the resolutions in dispute until the final determination of the dispute (namely Resolution 4 Lift Upgrade and resolutions passed with respect to building works), is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0717-2004

"Galileo Tower" CTS 14193

The applicants, Carmford Pty Ltd, Brezville Pty Ltd and Peachbroom Pty Ltd of Lots 7, 8 and 10 respectively, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

1. "That special resolutions 2 and 3 of the extraordinary general meeting held on 12 August, 2004 which were defeated will remain defeated.

2. That motion 4 which was passed at the extraordinary general meeting held on 12 August, 2004 be declared invalid.

3. That the "master plan" resolved by the body corporate in 2000 be implemented by the body corporate forthwith.

4. That the resolutions passed with respect to building works be declared invalid as not being in accordance with a master plan resolved to be entered into in 2000."

The applicants have also made application for the following interim order of an adjudicator –

"That the body corporate may not act on the resolutions in dispute until the final determination of the dispute."

JURISDICTION:
This is a dispute between owners (the three corporate owners of Lots 7, 8 and 10) and the body corporate (the respondent), concerning the validity of certain resolutions passed at an extraordinary general meeting of the body corporate. These are matters fall within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and may be determined by a departmental adjudicator.

There is a matter of jurisdiction that I need to address.

Section 242 of the Act requires that an application for an order to declare void a resolution of the body corporate must be made within 3 months of the meeting at which the motion was passed. Here the relevant was held on 12 August and this application was lodged on 15 November 2004, just outside the 3 month statutory limit. Section (3)(b) however provides that an adjudicator may waive the limit where good reason exists to do so.

In normal circumstances I would not proceed with this application unless a submission had been made by the applicants that grounds for waiver exist. In currently considering the application for interim orders, for the reasons that follow regarding the circumstances of the overall renovation of the building (the purpose and subject of the meeting), I do not need that submission. However, the applicants will need to provide such a submission for consideration of the final orders.

Section 279 of the Act 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. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284 of the Act).


APPLICATION:
Under section 247 of the Act, the requirement to seek submissions from interested parties may be dispensed with and the application for an interim order dealt with directly by an adjudicator.

That course is considered appropriate in this instance for the following reasons –

• In relation to Order 1 sought, the interim order is inappropriate as both motions failed and therefore there is no question that the body corporate committee can implement them.
• In relation to Order 2, I have considered the appropriateness of the type of resolution used to pass Motion 4 in a separate application lodged by Messrs Spottiswood and Dawes of Lots 11 and 12 respectively, and in consequence issued Interim Order 701-2004 on 16 November 2004 staying the implementation of the purported resolution.
• In relation to Order 3, the interim order is inappropriate in having the body corporate implement a "master plan" as this is a final determination of a matter rather than just the staying of some proposed action.
• In relation to Order 4, no evidence is offered other than a reaffirmation of the statement in the order sought that certain proposed building works are not in accordance with a master plan (see "Determination").

DETERMINATION:
"Galileo Tower" was registered as a building units plan (now termed a building format plan) on September 1973 and comprises 12 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Order 1: That special resolutions 2 and 3 of the extraordinary general meeting held on 12 August, 2004 which were defeated will remain defeated.

As stated previously, both Motions 2 and 3 were defeated and there is no resolution for the body corporate committee to implement – whether the motions are given effect to under Application 557-2004 will be decided in considering that application and the submissions made to it – all owners were given the opportunity to make a submission to that application.

Order 2: That motion 4 which was passed at the extraordinary general meeting held on 12 August, 2004 be declared invalid.
As stated under "Application" above, I have already made an interim order that prevents the purported resolution to Motion 4 from being implemented or otherwise acted upon, being Interim Order 701-2004, and no further order is necessary.

Order 3: That the "master plan" resolved by the body corporate in 2000 be implemented by the body corporate forthwith.
In seeking the implementation of a "master plan" for renovation of the scheme building, the applicants are seeking the final determination of a matter and not the staying of a proposed action as can only be provided under an interim order. That is, an interim order is inappropriate for the interim order sought.

Order 4: That the resolutions passed with respect to building works be declared invalid as not being in accordance with a master plan resolved to be entered into in 2000."
As stated above, "no evidence is offered other than a reaffirmation of the statement in the order sought, namely that certain proposed building works are not in accordance with a master plan." Additionally, the relevant motions containing the proposed works have not been identified by the applicants. Accordingly I cannot make an interim order in respect of this matter.

In summary, no interim order is either warranted or necessary and I have therefore dismissed the application for interim orders.

It may be of benefit if I repeat here comments I made in my statement of reasons to Interim Order 701-2004 –

"I also refer owners to Application 557-2004 submitted by 7 owners who seek an order for Motions 2 and 3, which failed to pass at the same meeting of 12 August, be given effect to. Additionally, there has been a further application for several interim orders concerning motions passed at the same meeting, including one to invalidate the Lift Upgrade resolution. There are therefore 3 applications concerning renovation motions passed at the 12 August meeting, evidencing a wide divergence of opinion amongst owners over the whole renovation proposal.

While I am ready to deal with the applications in time, perhaps the owners might think a better outcome will be achieved if they were to strive for a negotiated outcome encompassing all of the intended and suggested works, rather than fight each other through the adjudication system and later perhaps through the District Court on appeal. It may be more timely and effective (cost and otherwise) in this instance, to engage a trained mediator for the purpose. In any case, that is a matter for owners to decide."

The full text of the statement of reasons, and the order made, will shortly be provided to all owners by the body corporate secretary along with the notice inviting submissions from them to final orders to Application 701-2004.

In respect to this current application, the matter will now be investigated in accordance with the usual processes undertaken by this office, including seeking submissions from the body corporate (committee) and other owners, before a final order to the application is made.