One The Esplanade [2009] QBCCMCmr 58 (23 February 2009)

Number of Scheme:	14060
Name of Scheme:	One The Esplanade
Address of Scheme:	1 The Esplanade SURFERS PARADISE QLD 4217

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

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

The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

One The Esplanade Community Titles Scheme (One The Esplanade), formerly “Allawah”, is a 45 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 Mullins Property Group Pty Ltd, owner of lots 45 and 46 (applicant) against the body corporate for One The Esplanade (respondent).

The applicant seeks an order declaring the general meeting of 22 December 2008 as void. Further or alternatively, declaring void a resolution that adopted new by-laws for the scheme.

The applicant seeks an interim order to prevent the body corporate putting into effect any of the resolutions adopted at the general meeting. This would operate pending a final determination at which final orders could be considered relating to the validity or otherwise of those resolutions.

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 the legislation requires that the body corporate give written notice of a general meeting to the owner of each lot. However, the applicant says it was only given notice as the owner of lot 45 and not given a second notice as the owner of lot 46.

It is difficult to understand this argument. The legislation provides notice is required to "the owner of each lot". The applicant, being the owner of lots 45 and 46, received notice of the meeting. I do not consider there is any evidence of a contravention of the legislation. Even if I am wrong and there is a technical contravention of the legislation, I would dismiss the application as frivolous and vexatious given the applicant had actual notice of the meeting.

There is, however, a serious question to be determined regarding the validity of resolution 11 proposing that the body corporate change its by-laws. Submissions by the body corporate manager acknowledge that, by oversight, a copy of the new by-laws was not sent out with the meeting notice. However, it is submitted that this was corrected by a mail out to all owners dated 15 December 2008. Serious questions therefore arise regarding a contravention of the legislation in this respect and whether any owners were disadvantaged. In particular, I note that the copy of the by-laws provided to this office appears to have been photocopied incorrectly and is missing every second page. Further, that the applicant says he did not receive a copy of the by-laws at all.

These submissions satisfy me that, if the matter does proceed to final determination, there is a serious question to be determined regarding whether all owners received this copy of the by-laws and whether any owners were disadvantaged by the late provision of this document.

The applicant has established some justification for an interim order prohibiting registration of the by-laws pending a final determination of the dispute. However, I note that the by-laws were recorded on 6 February 2009, prior to the present application being lodged.

In the circumstances, it is not appropriate to grant the interim order sought. Rather, final orders can be considered in due course regarding whether or not owners should vote again on the adoption of by-laws for the scheme.

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

One The Esplanade [2009] QBCCMCmr 58 (23 February 2009)