Villa Adori [2005] QBCCMCmr 707 (14 December 2005)

Last Updated: 16 January 2006

REFERENCE: 0802-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17573
Name of Scheme:	Villa Adori
Address of Scheme:	4 Adori Street SURFERS PARADISE QLD 4217

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

I hereby order that the application by Adam Smith, the owner of lot 16, for an interim order that the body corporate impose no further penalties, re disputed levies owing, on the applicant until such time as the final orders are determined, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0802-2005

"Villa Adori" CTS 17573

The applicant, Adam Smith, the owner of lot 16, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

1.	Pursuant to section 205(4) of the BCCM Act, the applicant may rely on the Body Corporate Information Certificate issued by the body corporate manager, Archers, and only be held responsible for the amount of levies as stated being $4701.27, which was paid on settlement of the property transfer to the applicant.
2.	That any penalty and / or interest accrued on alleged outstanding amounts from October 2004, be waived.

The applicant has also sought the following interim order of an adjudicator:

That the body corporate impose no further penalties, re disputed levies owing, on the applicant until such time as the final orders are determined.

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.

I consider that the requested interim order is not appropriately the subject of interim relief. Whether or not penalties are able to be imposed will depend on a determination of the final outcome of the application. If it is found that there was not basis for liability on the part of the applicant, then similarly there will be no basis for the imposition of penalties. Conversely, if liability for the alleged debt is found to exist, and has continued, then it would not be appropriate to have made an interim order preventing the body corporate from exercising its right to impose penalties.

In the circumstances, the requested 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.