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

I hereby order that the application for an order to invalidate Motion 4 which seeks to enter into trade by buying bulk electricity and on-selling it to owners and occupiers at a profit

STATEMENT OF ADJUDICATOR'S REASONS FOR DECISION - REF 0213-2011

Circle on Cavill community titles scheme consists of some 646 lots and common property. The community management statement for the scheme indicates that the Body Corporate and Community Management (Accommodation Module) Regulation (Accommodation Module) applies.

This is an application for interim orders arising out of an application by Mr. Zeke Kotcharian Pty. Ltd. on behalf of Kotcharian Pty Ltd, owner of lot 1196 (applicant) against the body corporate for Circle on Cavill (respondent).

The applicant seeks to prevent the body corporate proceeding into an agreement to purchase bulk electricity and re-selling the electricity to individual owners because he believes that it may involve a breach of section 96 of the Act.

an order to invalidate Motion 4 which seeks to enter into trade by buying bulk electricity and on-selling it to owners and occupiers at a profit.

In addition, the applicant seeks the following final outcome:

an order to invalidate Motion 4 which seeks to enter into trade by buying bulk electricity and on-selling it to owners and occupiers at a profit.

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 committee is ignoring his objections. He is concerned that owners will not receive any benefit from the proposal, and would be deprived of the ability to choose an alternative supplier.

However, at this point in time I have doubts as to whether there is a serious question to be determined because subsection 96(2) provides that the body corporate may engage in business activities to the extent necessary for properly carrying out its functions. Further section 167 of the Accommodation Module Regulation provides that the body corporate may supply utility services for the benefit of owners and occupiers of lots in the scheme. It should also be noted that under the Electricity Regulation 2006, an individual owner cannot be compelled to accept the supply of electricity from another supplier.

I am not persuaded that the proposed arrangement would involve a contravention of section 96 of the Act. Rather, by delaying the implementation of the motion, if carried, there is likelihood that owners would lose the benefit of cheaper electricity. Further, I am of the view that individual owners are entitled to continue to receive electricity from their current supplier if they so wish. Upon weighing up the possible detrimental financial implications from the making of the interim order against the possible benefits of buying bulk electricity and re-selling it to those owners who wished to partake of the arrangement, I am not satisfied it is appropriate to grant the interim order sought.

For these reasons, the application for interim orders is dismissed. The application for final orders remains outstanding and all owners and the body corporate will be given the opportunity to make submissions before any final order is made.