No. 9 Port Douglas Road [2007] QBCCMCmr 530 (4 September 2007)

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4871

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

I hereby order that, pending a final determination, the body corporate for No. 9 Port Douglas Road must record voting on motions at the general meeting scheduled to be held later today but must not implement any resolutions adopted.

I further order that, as soon as practicable, a copy of this order and reasons for decision must be given to all owners.

This is an interim order and will remain in effect for a period of not longer than one month. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0704-2007

"No. 9 Port Douglas Road" CTS 24368

No. 9 Port Douglas Road Community Titles Scheme (Port Douglas Road) is an 18 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application for interim orders seeking to prevent the body corporate deciding or acting on motions 8 to 15 to be considered at a general meeting to be held shortly. It arises out of an application by Maxwell Stainlay, owner of lot 17 (applicant) seeking final orders to overturn these resolutions.

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).

In determining whether it is just and equitable to grant interim relief it is relevant to briefly consider whether the application raises any serious questions for final determination.

It is also relevant to consider whether any inconvenience likely to result from the interim order is outweighed by the potential detriment alleged in the application. Any evidence that an interim order is necessary to prevent serious or irreparable harm will be significant.

The applicant has proposed acceptance of a quotation from Into Constructions Pty Ltd and revocation of a number of resolutions proposing different works. The committee has proposed acceptance of a quotation from Kenmac Constructions, Ted Granville Building or Long Contracting & Design as well as associated works.

The applicant disputes the proposals purporting to be put forward by the committee saying that these motions were not properly authorised by the committee and that some are listed as requiring only an ordinary resolution when they would require a special resolution or resolution without dissent.

Due to the lodgement of this application only shortly before the meeting is due to be held there has been little opportunity to obtain or review any detailed submissions regarding the issues raised. However, the committee have provided a submission disputing any resolution beyond an ordinary resolution is required and attaching minutes of a committee meeting purporting to authorise the general meeting.

Having reviewed the material provided, the applicant has raised serious questions about whether the all formalities required by the legislation have been complied with. In fact, there are questions about whether any of the substantive motions comply with formalities. In particular, there needs to be consideration of whether a motion with alternatives should have been formulated to handle motions proposing alternative ways of dealing with the same issue.

These issues require consideration before a final determination can be made.

The applicants have raised some serious questions for determination. In terms of making an interim order, I am reluctant to put on hold work that is directed at preventing water damage to units. However, it is obviously also preferable that the body corporate not enter into any contracts to perform the work before this dispute is finally determined.

I also note that the application was not lodged until 30 August 2007 despite the applicant presumably having been given at least three weeks notice of the meeting. It appears unfair on owners to cancel the meeting or prevent any voting at the meeting that is scheduled to be held later today.

In the circumstances, I will make an interim order that is effective only for the period of one month to prevent the body corporate acting upon any resolutions adopted at the meeting. In this way, owners will have an opportunity to express their vote. I will then endeavour to provide an order that can finally resolve the issues in dispute within this one month period.

It is of grave concern that the submissions indicate that the body corporate has been, for a number of years, in almost constant disputation. Over these years it appears that the body corporate has been unable to take a single practical step to stop water pouring through parts of the building and causing damage to units within. If so, this is in direct contravention to a specific obligation that the body corporate must maintain the common property in good condition.

I am aware that the applicant was recently refused an application for the appointment of an administrator to perform the functions of the committee until the building issues are finalised. However, if the outcome of the meeting today does not satisfy me that the body corporate can promptly comply with its legal obligations or doubts are raised about the capability of the committee to ensure this occurs then some direct intervention by an adjudicator may be justified.

I therefore wish to put all owners on notice that, after reviewing the outcome of the meeting and any professional advice provided to the body corporate, it may be appropriate for me to make ancillary orders to ensure the body corporate complies with its legislative obligations. This may involve appointing an administrator to ensure the body corporate performs work in a timely and professional manner and ordering the body corporate take a specific course of action to redress the leakage issues even if no appropriate course of action is adopted at the meeting in accordance with the legislation.

For these reasons, I make the interim order above.

I will give all owners an opportunity to make submissions and then endeavour to ensure that appropriate orders are made to resolve the present dispute and to resolve the substantive issues of how the body corporate is going to deal with the issue of water leaking into units.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

No. 9 Port Douglas Road [2007] QBCCMCmr 530 (4 September 2007)