Cathedral Place [2009] QBCCMCmr 392 (12 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0935-2009

INTERIM ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Plan:	Cathedral Place
Number of Building or Parcel:	MCP 106902
Address of Parcel:	41 Gotha Street FORTITUDE VALLEY QLD 4006

TAKE NOTICE that pursuant to an application made under sections 76 and 77 of the Building Units and Group Titles Act 1980 by The Proprietors - Notre Dame BUP 106912 and The Proprietors - Oxford/Cambridge BUP 106905

I hereby order that the application for interim orders is dismissed.

STATEMENT OF REFEREE’S REASONS FOR DECISION - 0935-2009

“Cathedral Place”

Application

This application is by The Proprietors - Notre Dame BUP 106912 and The Proprietors - Oxford/Cambridge BUP 106905 (applicants) seeking orders against the Cathedral Place Community Body Corporate (CPCBC). The applicants are both members of the CPCBC.

Submissions are to the effect that the chairperson and treasurer of the CPCBC is refusing to issue levy notices as required by an ordinary resolution passed on 24 August 2009. It is submitted that this affects the equilibrium of voting as another member of the CPCBC, The Proprietors – Cathedral Village BUP 106957 (Village BC) would not have been able to cast a vote if levy notices had been issued. Submissions are to the effect that this is a strategy of the chairperson to ensure a tied vote on issues at the meeting so that the chairperson can determine the issue using his casting vote. An interim order is sought to prevent the CPCBC putting into effect any resolutions passed by the chairperson’s casting vote. Final orders are sought to make an order that levy contribution notices be issued effective as of 2 September 2009 or some other time considered appropriate by the referee.

Submissions provided by the chairperson on behalf of the CPCBC were to the effect that there were no grounds given for revoking the legislative provision for a casting vote to be made by the chairperson. It is further submitted that a general meeting to be held on 12 October 2009 may pass a resolution revoking the decision made to issue levy notices based on calculations adopted at the 24 August 2009 meeting. In particular, it is submitted that the chairperson and treasurer did not refuse to issue levy notices outright but simply said that he would not issue those notices until he had received the final report from the Auditor.

Jurisdiction

The CPCBC is established under the Mixed Use Development Act 1993 (MUD). Section 214A of MUD provides that “Unless otherwise provided in this Act, a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5”.

BUGTA continues to apply regarding the operation of MUD despite the subsequent commencement of the Body Corporate and Community Management Act 1997 (BUGTA, 5A). A Referee under BUGTA has power to make interim orders and to renew interim orders for this type of application (BUGTA, 76).

Decision

A referee may make an interim order where satisfied on reasonable grounds that the order should be made by reason of the urgent circumstances of the case (BUGTA, 76). The general powers of a referee to make orders are with respect to the exercise or performance of a power, authority, duty or function conferred or imposed by the Act in connection with the land in question (BUGTA, 77).

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.

In this instance I am satisfied that there are serious questions to be determined regarding whether the treasurer is under an obligation to put into effect the resolution requiring the issue of levy notices. However, if such a failure was established then the obvious remedy is an order requiring the treasurer to issue the levy notices.
It would not appear to be possible or appropriate for a referee to make an order deeming levy notices to have been retrospectively issued so as to deprive the Village BC of its vote on the basis its contributions had not been paid by the due date.

In particular, I am not satisfied that it is appropriate to make any interim order at this time to prevent the CPCBC putting into effect any resolutions passed pending the issue of levy notices. The evidence submitted by the applicants alleges a complex pattern of behaviour to engineer a specific result. This would be reliant on a number of assumptions, including that the Village BC would be unable to pay its levies if levy notices had issued. It is simply not appropriate to make the interim order sought particularly given, as a matter of law, it would not be appropriate to make a final order deeming the Village BC unable to vote or depriving the chairperson of a casting vote provided for in the legislation.

Order

For these reasons, the application for interim orders is dismissed.