Raffles at Runaway Bay [2005] QBCCMCmr 498 (5 September 2005)

Last Updated: 19 July 2006

REFERENCE: 0572-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17200
Name of Scheme:	Raffles at Runaway Bay
Address of Scheme:	18 Jennifer Avenue RUNAWAY BAY QLD 4216

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

June Patricia McRedmond, the owner of lot 3

I hereby order that the Body Corporate for Raffles at Runaway Bay shall not lodge with the Registrar of Titles a new Community Management Statement for the scheme recording the changes (by deletion) to by-law 24 until a final order to this application is made, this application is withdrawn of this order is of no effect through operation of law.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0572-2005

"Raffles at Runaway Bay" CTS 17200

The applicant, June Patricia McRedmond, the owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

I wish to appoint an adjudicator to resolve if it is correct or not for motion 9 of the agenda ... to be carried. ...

The applicant has also sought an interim order, quote:

An interim order that the Body Corporate be restrained from registering any alteration of by-law 24 pertaining to exclusive use of Marina berths.

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.

In her grounds, the applicant states:

A requisition order was presented by lots 18 and 21 which required a "yes" vote. The motion was to delete item 24(1)(a) and (1)(e)(iii) from the Marina By-laws which would change the title. The Marina is exclusive use property. It is my understanding exclusive use property this motion should have achieved a unanimous vote with no dissent in order for it to be carried.
... the vote was 11 yes, 2 no. As it was an exclusive use issue, should the 2 no votes be deemed dissent and the motion lost?

At the AGM of the body corporate held on 26 July 2005, the body corporate resolved in motion 9 headed Exclusive Use of Marina Berths that "the following conditions be deleted from Title reference 50065229 "Obligations attaching to Exclusive Use for Marina Berths:

(a) Item 24-1(a) be Deleted
(b) Item 24-1(e)(iii) be Deleted.

The minutes record that the motion was carried by a yes vote of 11. The minutes record there were 2 no votes and one abstention from voting.

The question raised by the application is whether the amendment to the by-law proposed by the motion requires a resolution without dissent in order to be carried. The relevant section of the Act provides:

62 Body corporate to consent to recording of new statement
(1) This section provides for the form of the consent of the body corporate for a community titles scheme to the recording of a new community management statement for the scheme in the place of the existing statement for the scheme.
(2) The consent must be in the form of a resolution without dissent.
(3) However, the consent may be in the form of a special resolution if the difference between the existing statement and the new statement is limited to the following--
(a) differences in the by-laws (other than a difference in exclusive use by-laws);
(b) the identification of a different regulation module to apply to the scheme.
(4) The consent to the recording of a new community management statement need not be in the form of a resolution without dissent or special resolution if the new statement is different from the existing statement only to the extent necessary for 1 or more of the following--
(a) compliance with a provision of this Act under which the body corporate is required to lodge a request to record a new statement for a purpose stated in the provision;
(b) compliance with the order of an adjudicator or the District Court made under this Act for the lodging of a request for the recording of the new statement;
(c) changing the community titles scheme to give effect to an approved reinstatement process;
(d) changing the community titles scheme to reflect a formal acquisition affecting the scheme;
(e) recording the details of allocations of common property or body corporate assets made under an exclusive use by-law;
(f) implementation of development proposed under the existing statement or under the provisions of a community management statement to which the existing statement is subject;15
(g) showing the location of a service easement for the community titles scheme by including a services location diagram;
(h) amalgamating or subdividing lots included in the community titles scheme;
(i) reproducing the existing statement without any change of substance.
15 Unless consenting to the new community management statement is a restricted issue for the body corporate’s committee under the regulation module applying to the community titles scheme, it is enough for the committee to consent to the recording of the new statement, and an ordinary resolution of the body corporate is not required.
...
It is clear under section 62 of the Act that approval of a new CMS which comprises a "difference in exclusive use by-laws" is required to be in the form of a resolution without dissent.

The motion in question proposes amendments (by deletion) to by-law 24 headed "Obligations attaching to exclusive use for marina berths". By-law 23 is headed "Exclusive Use / Marina Berths".

It is clear that the motion in question was not passed by a resolution without dissent. It is apparent on the face of it that the resolution does require a resolution without dissent in order to be valid.

I have undertaken a search of the Registrar of Titles records and have ascertained that as of the making of this order, the new CMS has yet to be lodged for registration. This fact was confirmed to this office by Katie Todd who I understand is with the body corporate manager for the scheme. In the circumstances, I intend to order that the new CMS recording the change of by-law 24 for the scheme not be lodged for registration until a final order is made, this application is withdrawn of this order is of no effect through operation of law. Before making a further order, and finally determining this application, I will seek submissions from interested parties including the body corporate.