Palm Springs Retirement Village [2006] QBCCMCmr 96 (21 February 2006)

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

I hereby order that the application by Delma Garrett-Benson, the owner of lot 30 & Jack Knight, the owner of lot 2 for interim orders that, quote:

1. That an independent person, not related to nor an associate of Jodaway Management Pty Ltd and Jodaway Pty Ltd be appointed as the chairperson for the AGM to be held on the 22^nd of February 2006;
2. That the decisions of the committee meeting held on the 2^nd of November 2005 and the 31 of January 2006 be declared invalid;
3. That pursuant to section 82 of the Body Corporate and Community Management (Accommodation Module) Regulations that the Scheme Operator apply for consent from the body corporate for the transfer of the business and have the opportunity to consdier whether or not to request a transfer fee pursuant to section 83 of the Regulations;
4. That the following nominations for committee positions be declared invald pursuant to sections 11, 14 and 14A of the Body Corporate and Community Management (Accommodation Module) Regulations:

a) Michael Issakidis – nominated for Chairperson;
b) Donrecka Issakidis – nominated for Treasurer;
c) Len Undy – nominated for Secretary,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0095-2006

"Palm Springs Retirement Village" CTS 30852

The applicants, Delma Garrett-Benson, the owner of lot 30 & Jack Knight, the owner of lot 2 have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

The applicants have also sought the above orders numbered 1 – 4 as interim orders.

In further correspondence dated 17 February 2006, the applicants have sought the following additional order:

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)).
Processing of this application

On receipt of this application, this office undertook certain administrative actions associated with case management of the application. On 16 February 2005, this office wrote to the applicants raising certain aspects related to the application and requiring clarification by way of "further information sought". As of today, this further information has not been provided, and its receipt is awaited.

The requested interim orders

Given that the meeting in respect of which certain interim orders have been sought is to be held tomorrow, Wednesday 22 February 2006, I considered that, subject to matters raised in correspondence with the applicants, the request for interim orders should be considered.

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.

The four interim orders sought by the applicants are not interim, but rather final in nature. They are not injunctive in nature; rather they are determinative of the relief sought by the applicants. Moreover, the nature of the interim relief sought is not such that it can be determined without input from other parties. In the circumstances, I am not prepared to consider the requested interim orders further for the above reasons, but additionally because:

I am further satisfied that nothing which cannot be reversed or be the subject of consideration in the final determination of this application will occur in consequence of allowing the meeting to proceed as notified. Accordingly, the requested interim orders are dismissed.

Number of Scheme:	30852
Name of Scheme:	Palm Springs Retirement Village
Address of Scheme:	15 Carmichael Court WYNNUM WEST QLD 4178

1.	That an independent person, not related to nor an associate of Jodaway Management Pty Ltd and Jodaway Pty Ltd be appointed as the chairperson for the AGM to be held on the 22^nd of February 2006.
2.	That the decisions of the committee meeting held on the 2^nd of November 2005 and the 31 of January 2006 be declared invalid.
3.	That pursuant to section 82 of the Body Corporate and Community Management (Accommodation Module) Regulations that the Scheme Operator apply for consent from the body corporate for the transfer of the business and have the opportunity to consdier whether or not to request a transfer fee pursuant to section 83 of the Regulations.
4.	That the following nominations for committee positions be declared invald pursuant to sections 11, 14 and 14A of the Body Corporate and Community Management (Accommodation Module) Regulations:
a)	Michael Issakidis – nominated for Chairperson;
b)	Donrecka Issakidis – nominated for Treasurer;
c)	Len Undy – nominated for Secretary.
5.	That the sinking fund be reimbursed for
a)	the costs debited against the account for the purchase of a watercooler for use in the common room; and
b)	the costs to reinstate / replace the kitchen splash back with stainless steel and a stainless steel bench; and
c)	the costs to purchase a new dishwasher.
6.	That those owners who have been charged to reinstate the locks to the masterkey system be reimbursed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Palm Springs Retirement Village [2006] QBCCMCmr 96 (21 February 2006)