Shafston University Mansions [2010] QBCCMCmr 34 (28 January 2010)

Number of Scheme:	29747
Name of Scheme:	Shafston University Mansions
Address of Scheme:	9 Castlebar Street KANGAROO POINT QLD 4169

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.

Shafston University Mansions Community Titles Scheme (Shafston) is a 174 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 Peter Elliot, owner of lot 1110 (applicant) against the body corporate for Shafston (respondent).

The applicant seeks to invalidate an extraordinary general meeting held on 13 January 2010.

The applicant seeks interim orders to stop the body corporate acting on resolutions regarding Queensland Civil and Administrative Tribunal (QCAT) proceedings in relation to leaking hot water pipes (resolutions 2 and 4). An interim order is also sought to stop the body corporate acting on a resolution purporting to authorise the issuing of a notice for breach of code of conduct against the applicant (resolution 7).

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 has raised a large number of objections to the validity of the meeting and the resolutions. These include an alleged lack of capacity for the committee to call the meeting, the alleged omission of a motion from the agenda, alleged unauthorised tape recording of the meeting, alleged late declaration of a quorum, and various issues with various motions voted upon.

The committee has submitted that the application, if granted, would deny members the right to seek fair determination of the QCAT proceedings and might impose potentially avoidable costs of $250,000 to $1,000,000. It is submitted that the applicant is seeking to overturn the decision of the majority on a matter that was voted on solely because he contested the validity of the earlier majority decision. Further, that if the applicant was sincere he would have sought to ensure a motion to ratify the proceedings was put to the members in wording acceptable to him rather than raising objections to the motions voted upon only when it was too late to address any concern he might raise. It is also submitted that the code of conduct breach notice has already been served.

The submissions raise various questions for determination. Questions include whether the legislation has been contravened, whether any contravention should result in invalidity of the adopted resolutions, and whether the applicant waived any non-compliance with the legislation by failing to object at the appropriate time.

However, it is possible that the applicant will not succeed in establishing the invalidity of the resolutions. The body corporate is already engaged in the QCAT proceedings and there is evidence that any interim order as sought by the applicant is likely to result in significant additional costs and inconvenience. It is also submitted that the code of conduct breach notice pursuant to the purported resolution 7 has already been served. In these circumstances, I am not satisfied that it is appropriate to make any of the interim orders sought. The application should simply proceed directly for a final determination.

For these reasons, the application for interim orders is dismissed. If necessary, a final order will be made in due course.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Shafston University Mansions [2010] QBCCMCmr 34 (28 January 2010)