Allamanda Court [2006] QBCCMCmr 719 (13 September 2006)

Last Updated: 29 March 2007

REFERENCE: 0680-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21166
Name of Scheme:	Allamanda Court
Address of Scheme:	145 Government Road LABRADOR QLD 4215

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

Alan Audritt, the Owner(s) of lot 19

I hereby order that the application for interim orders is dismissed. The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0680-2006

"Allamanda Court" CTS 21166

Interim Application

Allamanda Court Community Titles Scheme (Allamanda) is a 25 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Accommodation Module).

This is an application for interim orders. It arises out of an application by Alan Audritt, owner of lot 19 (applicant) against the body corporate for Allamanda (respondent).

The applicant alleges that legislative procedures are not being properly followed and the annual general meeting on 27 August 2006 should be declared void.

Interim Orders Sought

The applicant seeks an interim order to prevent the body corporate acting on any resolutions passed at the annual general meeting. This would operate pending a final determination of the validity of the meeting.

Decision

Urgent interim relief

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

Submissions

The applicant makes the following eight allegations:

1. The notice of meeting does not comply with the legislation;
2. Motions do not have an abstain vote available;
3. There is no motion to have an audit;
4. Motion 6 is confusing;
5. Five motions from the applicant were omitted from the voting papers;
6. The first page of the voting paper had no place to write your name or lot number; and
7. The voting paper had elections for the committee but incorrectly put a space for a "yes" or "no" vote.

Submissions from the chairperson were to the effect that the annual general meeting proceeded in a similar manner to annual general meetings over the past five years. The results of voting provided by the chairperson indicate that the only motions passed were:

1.	To confirm minutes of the previous meeting (Resolution 1);
2.	To adopt budgets and levies (Resolutions 2, 3 and 4);
3.	To dispense with the appointment of an auditor (Resolution 5);
4.	To retain Corporate Home Unit Agencies Pty Ltd as insurer (Resolution 8); and
5.	To install speed humps (Resolution 9).

No basis for interim order

The applicant alleges a number of technical failures with the procedures adopted at the meeting. However, non-compliance of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken in good faith.^[1]

In this instance the applicant does not point to any significant disadvantage if the resolutions are not put on hold immediately pending a final determination. A number of the motions passed at the annual general meeting are important for the ongoing operation of the body corporate. The application therefore does not justify the grant of any interim orders.

In the circumstances, it seems appropriate to decline any interim orders and have the substance of the application determined by final orders after all owners have been given an opportunity to make submissions. Alternatively, the applicant may be better able to resolve the dispute by meeting with committee members and seeking to conciliate any issues in dispute.

Order

For these reasons, I make the interim order above.

The application will be allowed to proceed to submissions and a final determination in the normal course.

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^[1] Wei-Xin Chen v Body Corporate for Wishart Village, Appeal 4080 of 2000, District Court (Brisbane), 29 May 2001.