Rhode Island [2005] QBCCMCmr 73 (21 June 2005)

Number of Scheme:	4380
Name of Scheme:	Silva Lake
Address of Scheme:	280 Christine Avenue VARSITY LAKES QLD 4227

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

I hereby order that the application for an interim order that the appointment of Mr. A Szilberleitner as an ordinary committee member be the subject of an on-hold order until a final determination has been given in respect of this dispute, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0081-2005

"Silva Lake" CTS 4380

The Applicant, the Owner of Lot 4, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (" the Act"), quote-

"That the appointment of Mr. A Szilberleitner as an ordinary committee member is void as a result of the Body Corporate Silva Lake causing or permitting the irregularity in respect of the appointment of Mr. A Szilberleitner as an ordinary committee member."

The Applicant has also sought the following interim order of an adjudicator, quote-

"That the appointment of Mr. A Szilberleitner as an ordinary committee member be the subject of an on-hold order until a final determination has been given in respect of this dispute."

At this time, I am solely concerned with the threshold issue of whether an interim order is warranted.

Jurisdiction

Section 227(1)(b) of the Act provides that a dispute between an owner or occupier of a lot and the body corporate, is a dispute which may be resolved under the dispute resolution provisions of the Act. As this is a dispute between a lot owner and the body corporate, it is a dispute which may be resolved under the dispute resolution provisions 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 the Act or the community management statement; or

(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) & (2) provide that -
(1) The 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.
Examples
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.

(2) An interim order
(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and
(c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when
(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred. ...

Interim Orders

This dispute resolution application was made on 4 February 2005. The Commissioner has referred the application to me pursuant to section 267 of the Act for consideration for an interim order. At this time, I am solely concerned with the threshold issue of whether an interim order is warranted. In any consideration of an application that seeks the making of an interim order, 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. The examples included in the Act under section 279 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. However, given that an interim order may be made ex parte ( that is, without reference to, or submission from, the respondent named in the matter), where the circumstances or matters in dispute include matters or allegations not capable of expeditious, and objective consideration, then the request for an interim order may be refused. It is a matter for an adjudicator to determine in respect of each application.

Subject matter of the application

This application concerns the appointment of Mr. A Szilberleitner as an ordinary committee member. The Applicant states that the appointment of Mr. A Szilberleitner as an ordinary committee member is void as a result of the Body Corporate for Silva Lake causing or permitting the irregularity in respect of his appointment.

At the annual general meeting of the body corporate held on 24 November 2004, Mr Szilbertleitner was nominated by himself and Ms Steele was nominated by Mr M Parker for appointment as ordinary committee members. These nominations were declared invalid as both Mr Szilbertleitner and Mr Parker had previously nominated one other person for appointment to the committee. However a written nomination by Mrs D Griffith in favour of Mr Szilbertleitner was accepted.

The applicant submits that the nomination was treated as if it had been lodged before the closure of nominations on 31 August 2004 and the person chairing the AGM on 24 November 2004 should have called for nominations from the floor.

Determination

In the circumstances, I intend to dismiss the application for an interim order.

Firstly, I do not consider that the applicant has demonstrated any urgency relating to the application for example, the possibility of some detriment occurring to the affairs of the body corporate if this matter is not immediately dealt with.

Secondly, I consider that an effective resolution of this application requires further investigation, particularly by allowing affected parties to make a written submission about the application before the matter is finally determined.

For these reasons, I intend to dismiss the application for an interim order. My dismissal of the application for an interim order should not be taken as any indication of the merits or otherwise of the application for final orders. This application will now be administered in accordance with the Act, and the normal procedures of this Office. The application will be determined in due course.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Rhode Island [2005] QBCCMCmr 73 (21 June 2005)