Galileo Tower [2005] QBCCMCmr 733 (17 February 2005)

Last Updated: 13 July 2007

REFERENCE: 0701-2004A

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 Mullen Street HAMILTON Q 4007

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

Paul Frederick SPOTTISWOOD, the owner of Lot 11; and James Edward DAWES, the owner of Lot 12,

I hereby order that the substantial interim order made on 16 November 2004 which reads as follows – "I hereby order that the body corporate must not implement or otherwise act upon the resolutions of the body corporate declared passed at its extraordinary general meeting held on 12 August 2004 in respect of Motions 4 and 11, being for the upgrading of the lift and the replacement of garage doors respectively, pending determination of the final order to this application", is extended until such time as a final order to the application is made.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0701-2004A

"Galileo Tower" CTS 14193

The applicants, Paul Spottiswood and James Dawes of Lots 11 and 12 respectively, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That motions 4, 11 and 12 of the EGM held 12 August 2004 be declared invalid. These motions were presented as ordinary resolutions and declared carried on a majority vote. The "Body Corporate and Community Management (Standard Module) Regulation 1997" (the Regulations) provides that these motions should have been classified as Special Resolutions. As Special Resolutions these motions would have been defeated. Refer s113 of the Regulations.
These motions are shown on the attached minutes of the relevant meeting:
Number 4 – Lift Upgrade, value $107,440.
Number 11 – Replacement of Garage Doors, value $14,982.
Number 12 – Replacement of Hot Water Systems - $8,986."

The applicant has also made application for the following interim order of an adjudicator –

1.	"To require the Body Corporate to carry out no works proposed by these motions, effective immediately. These resolutions should be put on hold until the dispute is resolved.

2.	The Body Corporate should also be required to withdraw each special levy that has been raised in respect of these motions."

DETERMINATION:
By email letter dated 15 February 2005 the applicants have requested that the interim order be extended as the period for which the interim order had effect was about to expire, and the application had not resolved by final order.

Section 279(2) of the Act states –

279. Interim orders in context of adjudication.
(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.

This application is one of three applications largely concerning the same dispute, the others being Application No’s 557-2004 and 717-2004. All three matters will be determined together. An amendment to Application 717-2004 has been allowed, requiring notification of the new material to the relevant parties and an extension of time for the making of submissions and a reply by the applicant to those submissions. This delay would have meant that this interim order would have expired before any final orders could be made.

In the circumstances I am satisfied that the interim order should be extended until such time as the application is determined by final order.