Pacific Beach Apartments [2009] QBCCMCmr 446 (13 November 2009)

Last Updated: 9 December 2009

REFERENCE: 1041-2009

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30749
Name of Scheme:	Pacific Beach Apartments
Address of Scheme:	Cnr. Gold Coast Highway & Second Avenue PALM BEACH QLD 4221

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

R Bevington, the Owner(s) of lot 10

I hereby order that, apart from the election of a new committee, the body corporate for Pacific Beach Apartments must not implement any resolutions passed at the annual general meeting of 17 November 2009 pending a final determination regarding the validity of the agenda for that meeting. 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 This order will automatically lapse upon a final order being made or this application being withdrawn.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 1041-2009

“Pacific Beach Apartments” CTS 30749

Interim Application

Pacific Beach Apartments Community Titles Scheme (Pacific Beach) is a 16 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 Robert Bevington, owner of lot 10 (applicant) against the body corporate for Pacific Beach (respondent).

Interim Orders Sought

The applicant says that he and some other owners delivered a request for twelve motions to be considered at the annual general meeting but that the body corporate manager did not include these motions on the agenda despite these motions being delivered personally. Orders are sought to require the body corporate manager to issue a new agenda and not allow motions to be acted upon pending a final determination.

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 raised serious questions about the failure of the existing committee and body corporate manager to comply with a statutory requirement to include motions submitted by owners on the agenda (Standard Module, 69).

Submissions from the body corporate manager, Strata & Community Management Services Pty Ltd, are to the effect that motions submitted by individuals are not part of the agreed services of that body corporate manager’s contract and that the extra costs of typing the motions onto the agenda needed the authority of the secretary to charge the fees. It is further submitted that the legislation only allows for motions to be submitted by one member and not multiple members jointly but basic rules of legislative interpretation indicate this submission is obviously misguided.

Submissions from the secretary are to the effect that he was unaware until after the agenda was posted out that five owners had specifically requested items to be placed on the agenda.

These submissions satisfy me that, if the matter does proceed to final determination, serious questions arise as to possible failures of the body corporate manager and secretary to comply with the legislation regarding the calling of a meeting. In particular, there are issues regarding the failure to include the motions, whether the body corporate manager was entitled to extra payments for including the motions on the agenda, and whether the secretary had authority to alter or exclude any of the additional motions. In fact, a cursory look at the agenda also raises questions about whether even the statutory motions have been properly included, particularly relating to requirements that a motion must be included to review each insurance policy held by the body corporate and that the motion for an audit must include the name of the auditor proposed (Standard Module 76, 155).

Inconvenience from an interim order

The applicant has established some justification for an interim order prohibiting the body corporate from acting on any resolutions passed at the annual general meeting pending a final determination of the dispute. However, there is no basis for an order at an interim stage requiring the body corporate manager to issue an amended agenda as this would effectively provide the final relief sought without a final determination of the issues raised.

I note that the body corporate manager has suggested that the body corporate be allowed to put at least the statutory motions into effect. However, given there are questions regarding whether even the statutory motions have been properly included, I will put all resolutions made on hold and attempt to provide a final determination as soon as possible after owners have been given an opportunity to make their submissions.

Order

For these reasons, I make the interim order above.