Palm Springs Residences [2008] QBCCMCmr 346 (26 September 2008)

Number of Scheme:	29467
Name of Scheme:	Palm Springs Residences
Address of Scheme:	1 Twenty First Avenue PALM BEACH QLD 4221

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 Palm Springs Residences must not take any action to implement motions 19 or 20 to be dealt with at the 2008 annual general meeting of Palm Springs Residences.

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 This order will automatically lapse upon a final order being made or this application being withdrawn.

Palm Springs Residences Community Titles Scheme (Palms Springs Residences) is a 47 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 Jason Patterson, owner of lot 106 (applicant) against the body corporate for Palm Springs Residences (respondent).

The applicant says that there have been repeated assertions that the complex should be residential only. Further that the proposed motion 20 to not heat the swimming pool is part of an attempt to disrupt the caretaking business and discriminates against investor owners. Similarly, the applicant objects to the proposed motion 19 that purports to restrict short term letting.

The applicant seeks an interim order to stop the body corporate implementing motions 19 and 20. This would operate pending a final determination at which final orders could be considered relating to whether these motions should be ruled invalid and that an earlier resolution to close the gymnasium and spa also be invalidated.

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. The applicant has raised serious questions regarding whether the body corporate is discriminating against investor owners. In contrast, the committee has provided a submission stating that there are good reasons for the resolutions in question being put forward. Legally speaking, motion 20 appears relatively straightforward. However, a question still arises as to whether this is appropriate for determination by ordinary resolution or only by special resolution. Motion 19 is less straightforward in that questions may arise as to what are the legal consequences if the motion is passed and whether it is unlawful or unenforceable.

Given the dispute about the validity of these motions, it is relevant to consider whether any inconvenience likely to result from an interim order preventing implementation of these motions 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. In this instance, it does seem possible that investor owners could be adversely affected and it seems appropriate to preserve the current situation pending an opportunity for all affected persons to provide submissions before determining the validity or otherwise of the proposed motions. In particular, concerns about potential compensation claims if existing bookings are affected outweigh concerns of continued pool heating costs or other inconveniences for the period pending a final determination.

For these reasons, I make the interim order above. If necessary, a final order will be made in due course.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Palm Springs Residences [2008] QBCCMCmr 346 (26 September 2008)