Body Corporate and Community Management (Commercial Module) Regulation 2020 (Commercial Module)

INTERIM ORDER - The applicant lot owner requests an interim order to temporarily stop the body corporate records being handed over from the outgoing body corporate manager to a committee member. The applicant says the committee decision to do so was irregular and therefore invalid. The question for determination is whether an interim order is warranted in the circumstances.

1. Until the earlier of 30 May 2025, or these orders are cancelled, varied or renewed, or a final order is made, the body corporate must keep the body corporate records with the body corporate manager Pinnacle Strata.
2. If the body corporate has already moved the said records, they must be returned to Pinnacle Strata without delay or interference, subject to order 1 hereof.

• [1] The body corporate for 211 Ron Penhaligon Way Offices CTS 25277 has for some years been wracked by disputation concerning various matters, including the basic administration of the scheme and the expenditure of funds on legal services.
• [2] The applicant, applying as a lot owner and said to be the current committee secretary, says:
  • On 30 April 2025, Pinnacle Strata, the current body corporate manager (BCM), gave 30 days' notice of it ceasing to act as BCM for the scheme, to take effect 30 May 2025.
  • Approximately 2 hours later, lot owner Elizabeth Ellis gave notice that committee resolutions had been passed as a vote outside a committee meeting (VOC).
  • The VOC resulted in a resolution that the body corporate records be collected by another owner and member of the committee, which is said to be done on 9 May 2025 (today).
  • Notice of the VOC was not given to either of the corporate nominees for Lot 4 or Lot 6.
  • The VOC was not submitted through the Secretary or the Body Corporate Manager.
  • At the time of circulation of the VOC, Elizabeth Ellis had been removed as Chairman and as a member of the committee by resolution of an Extraordinary General Meeting held that day.
  • The history of the scheme is that documents have, in the past, gone missing and remain missing from the body corporate and therefore must remain in the possession of a body corporate manager.
  • It is imperative that the records of the Body Corporate remain secure and intact. This is particularly so where there is a forensic examination of the books and records of the body corporate currently underway concerning allegedly improper spending on legal fees.
  • No detriment would be caused by the records being temporarily kept by the outgoing BCM.
• [3] The purported VOC minute records 4 of the 7 committee members passing it.
• [4] The applicant presently requests an interim order that the records remain with Pinnacle Strata until a new BCM is appointed in a general meeting, and if the records have been removed, to be returned to Pinnacle immediately.
• [5] The requested final orders, for consideration in due course, are that the VOC be declared void and that the body corporate records are to remain at all times in the sole possession of a BCM as voted on by the members.

• [6] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[1] Accordingly, an applicant must satisfy the adjudicator that serious and irreparable harm would be caused without the interim order.
• [7] An interim order is usually made in the form of a temporary injunction - an order not to do something, pending a final determination of an application. It has effect for a period stated in the order, not to be longer than one year, and may be extended, varied, renewed or cancelled by the adjudicator until a final order is made, and otherwise lapses when an application is finally determined or withdrawn.[2]
• [8] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[3] The first issue is whether the applicant has made out a 'prima facie case' or raised a 'serious legal question', in the sense that if the evidence remains as it is there is some probability that the applicant will succeed at the final determination stage. The second issue is whether any inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by any inconvenience or injury which the respondent would suffer if an interim order were granted. Those two issues of serious legal question and balance of convenience are parts of one ultimate question - whether an interim order is warranted - and therefore should not be addressed mechanically or in isolation from one another.
• [9] The questions of law and fact raised by the application do not need to be finally decided at the interim order determination stage, and doing so is not appropriate where the evidence is potentially incomplete or questions of law require opposing arguments and unhurried consideration. That said, if the answer to a question of fact or law is clear on the evidence and issues as presented in the interim application, it may be appropriate and beneficial to decide such questions at the interlocutory stage.[4]
• [10] The application came to me late yesterday afternoon and the records are due to be collected today. Accordingly, there is no time to seek submissions from other parties if I am to make an order today. I note that the Commissioner may refer an application for an interim order directly to an adjudicator for consideration without first giving notice of the application and an invitation to make a submission to the respondent, other owners, and other affected parties.[5]
• [11] There are some prospects of finally declaring the VOC void, subject to further submissions and evidence. In that regard, the applicant has a prima facie case.
• [12] While there is no obligation at law for body corporate records to be kept with a BCM, nor is there any obligation to have a BCM, tampering with body corporate records, especially in order to stymie an investigation into impropriety, would likely be unlawful in some way. I note presently there is no evidence provided that this is likely to occur.
• [13] The balance of convenience favours the applicant because there would be no harm in the order and I can cancel or vary the interim orders after receiving submissions.
• [14] In the circumstances, I will make the interim order and invite submission on it, with a view to reconsidering my decision in the near future.

[3] For general principles see for eg Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1

[4] Cohen v Peko-Wallsend Ltd [1986] HCA 70 at [6]