Palm Springs Residences [2007] QBCCMCmr 112 (28 February 2007)

Last Updated: 5 March 2007

Office of the Commissioner for Body Corporate and Community Management SPECIALIST ADJUDICATION (Caretaking Service Contractor Dispute) Number: 0135A-2007

Applicants: J PATTERSON HOLDINGS PTY LTD



Respondent: BODY CORPORATE FOR PALM SPRINGS RESIDENCES

COMMUNITY TITLES SCHEME 29467

I N T E R I M O R D E R
28 February 2007

ORDER under section 279 of the Body Corporate and Community Management Act 1997 that the Respondent refrain from acting in any way in reliance upon the resolution of its extraordinary general meeting of 11 February 2007 that purportedly terminated the caretaking agreement with J Patterson Holdings Pty Ltd.

G F Bugden OAM
Specialist Adjudicator

Office of the Commissioner for Body Corporate and
Community Management

SPECIALIST ADJUDICATION
(Caretaking Service Contractor Dispute)

Number: 0135A-2007

Applicants: J PATTERSON HOLDINGS PTY LTD



Respondent: BODY CORPORATE FOR PALM SPRINGS RESIDENCES

COMMUNITY TITLES SCHEME 29467

DETERMINATION
28 February 2007

This is an application by the caretaker and letting agent for Palm Springs Residences community titles scheme 29467 ("Scheme"), which is located at Palm Beach. The application seeks to set aside a resolution of an extraordinary general meeting of the Scheme’s body corporate passed on 11 February 2007 that purportedly terminated the applicant’s caretaking agreement. That resolution relied on a notice of default served on the applicant by the body corporate which, according to the body corporate, was not complied with.

The applicant has also requested an interim order to restrain the body corporate "from taking any action in reliance on the resolution passed on 11/2/07 to terminate the service contract agreement or making any attempt to replace the managers, or to sell the said contract or the managers’ unit, until this matter is decided by the commission."

The application has been referred to me, as a specialist adjudicator, by the Commissioner in accordance with section 265 of the Body Corporate and Community Management Act 1997 ("Act"). At this stage of the proceedings I am only dealing, on an ex parte basis, with the application for an interim order. In this regard, section 279 of the Act says 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".

On the question of nature or urgency of circumstances, if I do not make an interim order and the body corporate proceeds to rely on its resolution, then the whole purpose of this application will be defeated. If the body corporate’s action was subsequently found to be illegal then the applicant may be forced to rely solely on a claim for damages. On the other hand, if I do make an interim order the body corporate will be delayed in resolving what it effectively claims is an underperforming caretaker.

Also relevant is the applicant’s prospects for success. If the application clearly has no merits, then it would be inappropriate to make an interim order. All this requires of me is to have regard to the whether the applicant has an arguable case. On this point, there may well be a concern as to the appropriateness of the remedy being sought by the applicant. The applicant seeks to "set aside" the resolution rather than challenge the right of the body corporate to terminate the agreement. This suggests that the applicant is targeting the resolution rather than the merits of the termination itself. In the absence of further evidence and the benefit of submissions from the parties, I am not sure what turns on this. Therefore, on balance, I am satisfied that in the circumstances of this particular case an interim order should be made to preserve the status quo while the substantive aspects of the application are dealt with.

I propose to make an interim order restraining the body corporate from acting in any way in reliance upon the resolution of its extraordinary general meeting of 11 February 2007 that purportedly terminated the caretaking agreement with J Patterson Holdings Pty Ltd. I will then refer the matter back to the Commissioner for the normal process to proceed.




G F Bugden OAM
Specialist Adjudicator