Focus [2007] QBCCMCmr 673 (7 December 2007)

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

I hereby order that, pending a final determination, the body corporate for Focus must not rely upon resolution 3 adopted at the extraordinary general meeting of 10 August 2007 as authorising entry into a maintenance agreement for a term of one year or more.

This is an interim order and will remain in effect for a period of not longer than six months. 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 This order will automatically lapse upon a final order being made or this application being withdrawn.

Focus Community Titles Scheme (Focus) is a 125 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. It arises out of an application by Laurie Doorey, an owner of lot 78 (applicant) against the body corporate for Focus (respondent).

The applicant seeks an interim order to stop the body corporate entering into an engagement of Sigiri Partnership (Sigiri) as service contractor pursuant to a resolution of 10 August 2007 that the applicant claims is invalid.

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 says that motion 3 purported to engage a service contractor for the scheme at a cost of over $175,000 per annum without compliance with requirements of the legislation. These included concerns that requirements for the appointment of a service contractor were not complied with, including requirements that the material forwarded to owners for the general meeting include the terms of the engagement (Accommodation Module, 85).

Submissions on behalf of Sigiri were to the effect that the application for an interim order is misconceived at law and not warranted on an independent examination of the factual circumstances. This is on the basis that Sigiri is not presently a service contractor as the appointment is only on a month to month basis subject to approval of a service contract at the annual general meeting due to be held on 23 November 2007.

Submissions on behalf of the committee agree that the requirements for appointment of a service contractor have not been met but say that the vote at the meeting of 10 August 2007 was merely to determine if owners wished to "bundle" the provision of maintenance, gardening, cleaning and security services and determine if any particular service contractor was acceptable. It was then the intention that the service provider be requested to submit a formal agreement that owners could consider at the annual general meeting in November 2007. It is submitted that the committee acted within its power to appoint Sigiri only on a month to month basis pending consideration of a formal contract at the annual general meeting. It is submitted that the
committee also had authority to terminate some existing service providers that were acting without any written contract or fixed term engagement.

It is also submitted that the applicant is bringing the application in his capacity as representative of the service contractor Focus Owners Limited (FOL) rather than in his personal capacity as an owner. Reference is made to a letter from Hynes Lawyers dated 26 July 2007 that is attached to the application and indicates that Hynes Lawyers are acting for FOL. This office has no jurisdiction over a dispute of this nature between a service contractor and the body corporate (Act, 227).

Submissions have also been received from a Robert Case and a Richard Mercer. It is not clear in what capacity those submissions have been made. These submissions raise further questions about the actions of the committee in relation to use of service contractors and voting. However, these submissions do not require detailed consideration at this interim stage.

In terms of the jurisdictional issue, the applicant's solicitors have informed this office that there was an internal error resulting in some of the original work being performed on behalf of the applicant being recorded against a FOL file. However, it is submitted that instructions were at all times received from the applicant and not from FOL and that steps have been taken to remedy the situation.

On 4 December 2007 the applicant's solicitors provided this office with a statutory declaration from the applicant stating that he has instructed his solicitors in his own capacity and no other party or entity is funding the proceedings. Based on this declaration, I consider I have jurisdiction to determine the application as being a dispute between an owner and the body corporate about an alleged contravention of the Act (Act 227 - 229).

The interim order sought is stated to be necessary to prevent significant expenditure of what is likely to be $15,000 per month if the committee improperly enter into a service contract without complying with the Act.

Based on the submissions, there seems to be little in dispute given that the committee do not appear to rely upon the disputed resolution as authorising entry into any service contract and state that this is a matter to be considered at the annual general meeting. However, if this is the case then the resolution is poorly drafted. On its face, the wording of the resolution could be seen to purport to authorise entry into contract of at least a year. In particular, the quotations provided appear to be calculated upon a yearly basis. I am therefore satisfied that there is some basis for making an interim order that the body corporate must not rely upon this resolution as authorising entry into a maintenance agreement for a term of one year or more.

The applicant has established some justification for an interim order prohibiting the body corporate from relying upon the disputed resolution to enter into an agreement for a term of one year or more. Particularly given the committee's submissions that the committee does not rely on this resolution as authorising entry into a service contract, it is difficult to see any inconvenience from granting this interim order.

I am not aware whether the annual general meeting has already been held or is shortly to be held and the issue may be resolved within that meeting. However, based on the information before me, I am satisfied that it is appropriate to make the interim order above pending an opportunity for the parties to resolve the matter themselves or for a final determination in due course.

I note that the applicant also seeks orders that the disputed resolution be declared invalid and that another committee resolution passed on 4 September 2007 also be declared invalid. However, these are orders of a final rather than interim nature and are issues that are not appropriate for an interim order at this stage.

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

This is an interim order and will remain in effect for a period of not longer than four months. 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.

This order arises out of an application by Laurie Doorey, an owner of lot 78 (applicant) against the body corporate for Focus (respondent). The applicant seeks an interim order to stop the body corporate entering into an engagement of Sigiri Partnership (Sigiri) as service contractor pursuant to a resolution of 10 August 2007 that the applicant claims is invalid.

On 2 May 2008 I received a request from the applicant noting that the Commissioner was still receiving submissions on the application and requesting the interim order be extended for a further 6 months. The committee were invited to respond to this request and have responded to the effect that the committee agrees in principle to the interim order being extended but believe it to be appropriate that the interim order should expire before the next annual general meeting, likely to be held in November.

As the application for final orders has not been resolved, I am satisfied that it is appropriate to make a new interim order on the same terms as the initial interim order but effective for a further four months (Act, 279).

Extending the operation of the interim order for a further four months would be expected to provide sufficient time for a final resolution of the dispute. This period also allows for the interim order to expire before the next annual general meeting is due to be held.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Focus [2007] QBCCMCmr 673 (7 December 2007)