Eleonora Court [2008] QBCCMCmr 87 (11 March 2008)

Last Updated: 18 April 2008

REFERENCE: 0216-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10589
Name of Scheme:	Eleonora Court
Address of Scheme:	53 Annie Street NEW FARM QLD 4005

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

Sean Ryan, the Owner(s) of lot 2

I hereby declare that, pending a final determination, any alleged amount payable by Sean Ryan, owner of lot 2 (applicant) relating to the alleged unauthorised changes or removal of the lock and intercom at the front door must not be treated by the body corporate as a body corporate debt payable by the applicant for the purposes of sections 10, 13, or 49A of the Standard Module. 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 This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0216-2008

“Eleonora Court” CTS 10589

Interim Application

Eleonora Court Community Titles Scheme (Eleonora Court) is an 8 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application for interim orders. It arises out of an application by Sean Ryan, owner of lot 2 (applicant) against the body corporate for Eleonora Court (respondent).

The applicant says that he removed a lock and striker plate from one of the two entrance doors after it had failed, jamming the door and locking his tenants both inside and out. He says that the body corporate is unfairly claiming from him an amount for the replacement of both entrance doors, that he is refusing to pay this trumped up claim, and that the body corporate intends to use this claim as a basis for denying his right to vote and to stand for committee election at tonight’s annual general meeting.

Interim Orders Sought

The applicant seeks an interim order to allow him the right to vote and to have his nomination accepted at tonight’s annual general meeting. He then seeks a final order that the claim against him for money owing be dismissed.

Decision

Urgent interim relief

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.

Serious question to be determined

The applicant has lodged the present application on the day of the annual general meeting and there is inadequate time to obtain submissions from the body corporate in respect of the orders sought. In these circumstances I am reluctant to grant the order sought.

However, the applicant has provided a strong argument that he should not be denied his legislative right to vote or stand for committee membership based upon any amount alleged to be payable relating to alleged damage to the common property. Sections 10, 13, or 49A of the Standard Module do provide specific circumstances where a person owing a body corporate debt is deprived of their right to vote or nominate for committee membership. However, the definition of a "body corporate debt" includes overdue levies but does not include unsubstantiated claims or debts owed that are not associated with the ownership of a lot.

In all the circumstances, I consider that it is just and equitable to simply grant the applicant a declaration that clarifies his legal position in relation to sections 10, 13, and 49A of the Standard Module.

Inconvenience from an interim order

I am reluctant to accept the veracity or otherwise of statements made by the applicant as the application has been lodged too late to allow the body corporate to respond to those statements.

However, I am prepared to make the limited declaration above to assist the body corporate to determine whether or not the applicant should be prevented from voting or standing for committee membership. This may avoid the inconvenience of requiring another general meeting to be called if the applicant is improperly denied his rights. However, obviously, any order relating to whether the applicant actually owes the money sought by the body corporate would be made only after the body corporate has been given the opportunity to make full submissions on the issue.

Order

For these reasons, I make the declaratory order above.