St Tropez North [2007] QBCCMCmr 134 (1 February 2007)

Last Updated: 12 March 2007

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

APPLICANT: WELLINGTON CAPITAL LIMITED RESPONDENT: BODY CORPORATE FOR ST TROPEZ NORTH CTS 11699

INTERIM ORDERS

I, Gary J. Radcliff, Barrister at Law, and Specialist Adjudicator appointed pursuant to the Provisions of Part 8 of the Body Corporate Community Management Act 1997 in respect of Dispute Resolution Application Reference 0078A-2007 DO ORDER pursuant to Section 279 of the Body Corporate and Community Management Act 1997 that until further order or until investigation and resolution of the matters the subject of the Application: 1. That the Respondent Body Corporate, its servants, agents and members be restrained from deciding the issue of whether or not to terminate the Caretaking Agreements and Letting Agreements with the Applicant at the extraordinary general meeting to be conducted on 3 February 2007; 2. That either party shall have liberty to apply. 3. Costs reserved.

Date: 1 February 2007



Signed: ...................................................
G J Radcliff, Barrister at Law

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

APPLICANT: WELLINGTON CAPITAL LIMITED


RESPONDENT: BODY CORPORATE FOR ST TROPEZ NORTH CTS 11699

REASONS FOR DECISION IN RESPECT OF ORDERS
MADE ON 1 FEBRUARY 2007

Pursuant to the Provisions of Part 8 of the Body Corporate and Community Management Act 1997, I have been appointed Specialist Adjudicator in respect of the issues the subject of Application Reference 0078A-2007 made by the Applicant against the Respondent.

My appointment was made at approximately 4:00pm on 31 January 2007. Upon my appointment I immediately made contact orally with the solicitors for the Applicant and with Mr Will Jamieson, the Chairman of the subject Body Corporate.

I gave directions to each party at first orally, and subsequently in writing that:

1. The parties convene and subsequently prepare jointly a list of agreed facts for delivery to my Chambers on or before 12:00pm on 1 February 2007.

2. In the event that the parties fail to agree such facts, each party be directed to deliver to me and to the opposing party an affidavit as to the facts relied upon in respect of the Application for the interim injunction.

3. That any further submissions be made in writing to me on or before 3:00pm on 1 February 2007.

Those directions were also forwarded to Queensland Strata Administration Pty Ltd who was the manager of the Body Corporate.

It has come to pass that disputes arose as to whether or not this issue, namely whether the Body Corporate ought be restrained from terminating the Agreement the subject of this Application, had in fact been resolved.
I had telephone communications with Mr George, solicitor for the Applicant who was of the belief that this matter had not been resolved and accordingly I informed all parties prior to close of business on 31 January 2007 that my directions remained in place until all parties advised me in writing that in fact the matter had been resolved.

On 1 February 2007 I again communicated with Mr George’s office to be informed that the matter was not resolved. I once again communicated by facsimile to all three interested parties (that is to say, Short Punch & Greatorix, Will Jamieson, and Queensland Strata Administration Pty Ltd) informing them that in the absence of written advice that the matter had in fact been resolved, my directions remain in force and that the statement of agreed facts and/or affidavits verifying such facts were expected by 12:00pm at my Chambers.

Messrs Short Punch & Greatorix provided me with a facsimile of an Affidavit of the facts upon which they were instructed to rely substantially in accordance with this direction. The Chairman of the Body Corporate, and Queensland Strata Administration Pty Ltd did not comply.

At approximately 2:00pm I telephoned Mr Jamieson, and I subsequently telephoned Ms Marika Maselli of Queensland Strata Administration Pty Ltd to enquire as to the whereabouts of their material. I was once again informed that the matter had been settled and that such resolution would be explained to me by a certain Michelle Lalli of MFS.

By way of explanation the Applicant, a subsidiary of the public company, S8 Limited which, for the past six months had been the subject of merger and/or takeover negotiations with MFS Limited. I am informed by Ms Lalli that MFS Limited now effectively "controls" the Applicant.

Ms Lalli provided me with an e-mail which was sent to her on Thursday, 1 February 2007 at 12:08pm from Ms Maselli (and copies to Mr Jamieson) which stated:

"Subject St Tropez North

Please be advised that Will Jamieson, Michelle, Nick Jones attended a conference recently to resolve the matter of motion 12 at the annual general meeting to be held on 3 February 2007. All parties were in agreement to withdraw motion 12 from the agenda on a "without prejudice" basis.

Will Jamieson gave such an undertaking to have this matter finalised. Further, Woodrange is to remain the current Agreement as it stands until a committee motion is put forward at an AGM pursuant to any such change of this current Agreement.

Yours faithfully

Marika Maselli

Body Corporate Manager

St Tropez North"

It therefore appears to me that all parties now are in agreement that no steps should be taken so as to in any way attempt to terminate the Agreements the subject of this Application.

However, neither Mr Jamieson nor Ms Maselli (from Queensland Strata Administration Pty Ltd) can bind the individual members of the Body Corporate who may attempt, somehow, to force the Chairman of the meeting to proceed with the resolution to terminate the Agreement.

Therefore, out of an abundance of caution, I have chosen, based on the material from Messrs Short Punch & Greatorix, to grant Interim Orders so as to preserve the status quo, and to prevent any steps being taken by any person to terminate the subject Agreements. I order:

I make such Orders as that appears to be the wish of all parties concerned with this Application. At the same, I have made preliminary observations concerning the facts leading to the attempt to terminate the Agreement and I should comment as follows:

1. It is abundantly apparent that the three so-called "breach notices" are defective and do not comply with the provisions of Section 84C(4). Thus any purported attempt to terminate the Agreement based on those notices would be ineffective.

2. It is plain that insufficient notice of the meeting has been given to the Applicant. Any order made pursuant to such a resolution without proper notice, would not be made.

Using the familiar tests that have been discussed on many occasions in authorities such as American Cyanamid Limited v Ethicon [1979] UKHL 3; (1975) AC 402, Active Leisure (Sports) Pty Ltd v Sportsman Australia Ltd (1991) 1 QdR 301 it is clear:

1. That there is a serious question to be tried.

2. That the balance of convenience favours the grant of interim orders which will preserve the parties’ positions until further order or resolution of the matter.

It occurs to me that this matter will soon be resolved. There is no need to interfere with the business of the Body Corporate insofar as it relates to other issues to be determined at the extraordinary general meeting, and therefore I do not propose to restrain other business from being considered. But those convening the meeting will now know that insufficient notice of the meeting has been given.


Date: 1 February 2007



Signed: ...................................................
G J Radcliff, Barrister at Law