Focus [2007] QBCCMCmr 409 (16 May 2007)

Last Updated: 13 July 2007

REFERENCE: 0344-2007A

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12996
Name of Scheme:	Focus
Address of Scheme:	114 The Esplanade SURFERS PARADISE QLD 4217

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

the Body Corporate

I hereby order that the body corporate committee is authorised to temporarily engage Strata Jem Pty. Ltd. in the role of body corporate manager on a month to month basis until a Final Order is made in respect of Dispute Resolution application 344-2007. I further order that Strata Jem Pty. Ltd. shall be paid a monthly fee which is pro rata the annual fee approved by the unit proprietors at the EGM held on 28 April 2007.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0344-2007A

"Focus" CTS 12996

The purpose of this Supplementary Interim Order and Statement of Reasons for Decision is to remove any uncertainty which may arise regarding the effect of Interim Order 344-2007I dated 27 April 2007.

The Scheme

"Focus" Community Titles Scheme 12996 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module) consisting of 125 lots created under a Building Unit Plan of subdivision.

Application

On 26th April 2007, the owners of Lots 46 & 49 filed a dispute resolution application with the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act) seeking the following Interim Orders:

•	That the Committee meeting held on 17 March 2007 is invalid; and
•	That the decision to hold the EGM (scheduled for 28 April 2007) made at the committee meeting held on 17 March 2007 is also invalid; or

In the alternative:

•	That members of the body corporate be prohibited from voting on motions 3 & 4 in the secret voting paper for the EGM.

It was argued inter alia, that as members of the body corporate were not provided with notice of the committee meeting held on 17 March, the decision of the committee to hold the EGM scheduled for 28 April 2007, and indeed any decisions made at that meeting, are invalid.

In my Statement of Reasons for Decision dated 27 April, I noted that the application concerned an EGM scheduled for 28 April 2007, was lodged with this Office on 26 April and received by me on 27 April. As there was insufficient time to call for submissions or to otherwise independently verify allegations made in the application for the purposes of section 269, I decided that the most appropriate course of action was to allow the EGM to proceed, but to order the Body Corporate not to carry out any resolutions based on motion 3 which concerned termination of the existing body corporate manager and replacement with a new body corporate manager.

The Interim Orders made on 27 April therefore included the following:
that owing to the possibility that a resolution based upon motion 3 could be invalid, the Body Corporate is to refrain from carrying out any resolutions based on this motion, including execution of a new Body Corporate Administration Agreement until a final order has been made

While it was not intended that the Interim Order would preclude the body corporate from engaging Strata Jem Pty. Ltd. or any other body corporate manager to act on a month to month basis until this dispute resolution application is finalised, concern has been raised by the body corporate that the Interim Order could be interpreted so as to have this effect.

The Body Corporate committee has therefore resolved to seek a Supplementary Order approving the "engagement by the Committee on a month to month basis of a practising Body Corporate Manager such as Strata Jem Pty. Ltd., until a final order is made."

I note that Strata Jem Pty. Ltd. has agreed to accept the appointment on a month to month basis at a monthly fee which is pro rata that of the annual fee approved by the unit proprietors at the EGM held on 28 April 2007.

Jurisdiction

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

(c) a claimed or anticipated contractual matter about-

(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)).

Determination
The body corporate committee is authorised to temporarily engage Strata Jem Pty. Ltd. in the role of body corporate manager on a month to month basis at a monthly fee which is pro rata that of the annual fee approved by the unit proprietors at the EGM held on 28 April 2007, until a Final Order is made in respect of Dispute Resolution application 344-2007.