Bayview Shores [2005] QBCCMCmr 329 (17 June 2005)

Last Updated: 2 August 2005

REFERENCE : 0427-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4078
Name of Scheme:	Bayview Shores
Address of Scheme:	5 Bayview Street, RUNAWAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Allan James Lane owners of Lot 53:

I order that the application seeking an interim order that no action be taken on Motion 16 of the 2005 AGM of Bayview Shores CTS 4078 until the determination of the final order sought in this application, is dismissed. I order further that the application seeking an order declaring Motion 16 of the 2005 AGM of Bayview Shores CTS 4078 "out of order" retrospectively, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0427-2005

"Bayview Shores" CTS 4078

The applicant seeks an interim and final orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That no action be taken on Motion 16 of the 2005 AGM of Bayview Shores CTS 4078 until
the determination of the final order sought in this application ".

and

"Declaring motion 16 of the 2005 AGM of Bayview Shores CTS 4078 "out of

order" retrospectively."

Jurisdiction:

This is a dispute between an owner of a lot (the applicant) and the Body Corporate of the

Bayview Shores Community Titles Scheme (the respondent) based on the passage of a motion put to the 2005 Annual General Meeting ("the AGM") of the scheme. This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

Application - Determination

The "Bayview Shores" Community Titles Scheme was registered in 1991 and immediately become subject to the provisions of the Act. In February 2004 the scheme registered a new community management statement which brought the scheme under the regulation of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). The scheme remains under the regulation of the Act and the Standard Module.

The applicant seeks an interim order that no action be taken on Motion 16 of the 2005 AGM of

Bayview Shores CTS 4078 until the determination of the final order sought in this application. The final relief sought is a declaration that a motion (Motion 16) put to the 2005 AGM was out of order. The basis of this request is that section 47(1)(a)(i) of the Standard Module may have been contravened. Section 47(1)(a)(i) of the Standard Module requires that where a motion conflicts with a motion already voted on at the meeting then the chair must rule the subsequent motion out of order.

The applicant has provided copies of the minutes of the 2004 AGM and the 2005 AGM. Of note are the outcome of votes on Motions 14, 15 and 16 at the 2005 AGM which the applicant suggests shows that the chairperson at the meeting has failed to comply with section 47(1)(a)(i) of the Standard Module.

In particular Motions 14 and 15 deal with how the lift landings within the scheme are to be decorated in some detail and Motion 16 seeks to ask lot owners what preferences they have in redecorating the lift foyer on their floor. Relevantly Motions 14 and 15 were carried and Motion 16 was defeated. The applicant suggests that Motion 16 is inconsistent with Motions 14 and 15.

In considering if am interim order is to be made, 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 (See section 279 of the Act). 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.

The applicant seeks an interim order that no action be the taken on Motion 16 as put to the 2005 AGM. The applicant has provided no evidence that any action is being taken on Motion 16 by the Body Corporate. I also note that Motion 16 was actually defeated at the AGM in any event. Therefore I am unable to entertain the interim order application as sought on the basis that there is no evidence that the nature of the application or the urgency of the matter warrants such an order.

I have outlined the details of this matter sufficiently above to deal with the final order as sought. I see no need to seek submissions from affected parties to properly deal with this matter.

The applicant relies on the failure of the chair person to comply with section 47(1)(a)(i) of the Standard Module for an order that Motion 16 should be retrospectively ordered "out of order". I do not propose to make such an order in this instance as Motion 16 was defeated and therefore has no effect. It is of no consequence to the Body Corporate or members of the scheme. In effect the order sought will achieve no result for any party except for the applicant who would appear to be wanting to simply "make a point". This jurisdiction should not entertain applications of this sort. I am sure that the applicant has brought this matter to the attention of the Body Corporate so using the dispute resolution process provided for in the Act is unnecessary.

I order that the application seeking an interim order that no action be taken on Motion 16 of the 2005 AGM of Bayview Shores CTS 4078 until the determination of the final order sought in this application, is dismissed.

I order further that the application seeking an order declaring Motion 16 of the 2005 AGM of Bayview Shores CTS 4078 "out of order" retrospectively, is dismissed.

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