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

INTERIM ORDER - whether an interim order is warranted

1. The application for interim orders is dismissed.

• [1] The applicant is a lot owner and also the caretaker at Palmerston Tower. She has lodged this application disputing the committee's calling of an extraordinary general meeting (EGM). The applicant says the committee's EGM agenda does not include motions that she had submitted with other owners' support.
• [2] The application seeks the following interim orders:
  1. That the secretary immediately withdraw the Notice of EGM issued on 11 March 2025; and
  2. Within 14 days the secretary to reissue a Notice of EGM that includes motions 1-8 as submitted by owners on 14 February 2025 and 24 February 2025, and such meeting to be held within 6 weeks of the date of the notice.
• [3] A final order is also sought to invalidate the committee's decision to issue the Notice of EGM of 11 March 2025 that did not include the applicant's motions.
• [4] The only question at this time is whether an interim order is warranted.

• [5] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] An adjudicator may make an order to resolve a dispute in the context of a community title scheme between a lot owner and the body corporate about a claimed or anticipated contravention of the Act.[2] Further, an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances.[3]
• [6] The commissioner has referred the application to me to decide whether an interim order is warranted. There is no statutory requirement to obtain comment from a respondent or affected party before an interim order is decided.[4] In the circumstances, I gave the committee a brief opportunity to respond to the interim order application.

• [7] An interim order will only be granted if it is necessary due to the nature or urgency of the circumstances. It will not be made if the only urgency is a desire to expedite a decision on the dispute.
• [8] In considering whether to grant interim relief, an adjudicator must consider:
  1. Whether the application raises a serious legal issue with a likelihood of success at final determination, that is, whether there is any merit to the application; and
  2. Whether the balance of convenience favours the interim order being granted. This requires balancing the inconvenience of granting relief now if final orders are ultimately refused against the impact of refusing interim relief if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm.

• [9] The grounds to the application are brief and somewhat confusing. Parts of it appear to relate to the resignation of the body corporate manager, Strata Dynamics, and the calling of a separate EGM to consider the appointment of a new body corporate manager. This appears unrelated to the current issue in dispute.
• [10] What is clear is that the applicant believes the EGM called by the committee on 11 March 2025 should not be allowed to proceed without including the motions she submitted. The applicants' 8 motions sought the removal of the current committee members. The applicant says these motions were supported by owners and properly submitted on 14 February 2025 and 24 February 2025. She says that the committee's decision to call an EGM without including these owners' motions, is invalid.
• [11] The committee says that the EGM called on 11 March 2025 did not include the applicant's motions to remove the committee, "as the submission had not satisfied the legislation required to be legally added to an EGM".
• [12] Section 84 of the Standard Module provides:

84 Requirement for requested extraordinary general meeting

(1) An extraordinary general meeting (a requested extraordinary general meeting) of the body corporate must be called if a notice requesting an extraordinary general meeting to consider and decide motions proposed in the notice is -

(a) signed by or for the owners of at least 25% of all the lots included in the community titles scheme; and

(b) given to the secretary or, in the secretary's absence, the chairperson or, if the committee has not yet been chosen, the original owner.

(2) The secretary may be presumed to be absent if the notice is given to the secretary at the address for service of the body corporate and no reply is received within 7 days.

(a) must be called, within 14 days after the notice is given under subsection (1), by the person to whom the notice is given; and

(b) must be held within 6 weeks after the notice is given.

Section 91 provides a general meeting must be held at least 21 days after notice is given to the lot owners.

• [13] The application includes an email dated 14 February 2025, in which the applicant purported to submit motions for an EGM to remove the committee. The committee says these motions failed to include the signed support of 25% of lot owners, which is required to requisition an EGM.
• [14] The committee then received a second email from the applicant on 24 February 2025 containing 8 motions to remove the committee, this time with 14 allegedly signed motions in support. However, the committee refused to call the EGM, asserting that the request did not satisfy the requirements of the legislation. The committee cites various aspects of the request that it says were non-compliant, including:
  1. The signed motions were inconsistent, with 3 different versions being signed by different owners.
  2. Multiple forms did not clearly state the owner, lot number, date and signature.
  3. Some of the forms were signed by owners digitally. The committee requested but did not receive the required proof of signature verifications.
• [15] Apart from section 84 of the Standard Module described above, the legislation also separately provides that if a motion is submitted, it must be included on the next general meeting agenda on which it is practicable to include the motion.[5] The applicant seems to suggest that the committee was obliged to include her 8 motions on the agenda of the next available general meeting, being the one called by the committee on 11 March 2025.
• [16] While at this stage, the applicant has not adequately explained her case, I am satisfied that there is at least a genuine legal issue warranting further consideration.

• [17] The presence of a serious legal question does not automatically justify granting interim relief. As outlined above, the balance of convenience must also be considered.
• [18] The applicant seeks interim orders to immediately withdraw the EGM notice issued by the committee, and for a new EGM notice to be issued that includes her 8 motions. The problem with such orders is that they are not interim in nature, in that they do not simply provide for a temporary protection of rights until the application for final orders is decided. Rather, if granted, these 'interim' orders would effectively resolve the dispute as the applicant would have achieved the outcome she wanted, being the calling of an EGM that includes her motions. If I grant such an order, but ultimately determine that the committee was not obliged to include the applicant's motions, then the body corporate would have been put through the unnecessary time and expense of issuing new notices and delaying the EGM.
• [19] I have obtained a copy of the Notice of EGM issued by the committee on 11 March 2025. The EGM is scheduled to be held on 2 April 2025. There are 3 motions listed on the agenda:
  1. To pay the balance of an account to Mr Install for the CCTV upgrade;
  2. To accept a quote for the resealing of windows; and
  3. To obtain a statement from Strata Dynamics for administration services carried out.
• [20] While on its face, none of these matters appear urgent, I see no justifiable reason in the circumstances to delay the EGM. The body corporate should be able to proceed with making decisions about its ordinary affairs especially where third parties are involved.
• [21] On the other hand, refusing to grant the interim orders now has little impact on the parties. The applicant's proposed motions seek the removal of the committee. If I ultimately determine that the calling of the EGM without including these motions was invalid, I may simply order that a new EGM be called to consider the motions. There is nothing to suggest that the removal of the committee is such a pressing matter that a delay in considering these motions would cause material inconvenience or irreparable harm to the parties.

• [22] In the circumstances, I am not satisfied that urgent interim relief is warranted. In particular, given the orders sought are final (and not temporary) in nature, I do not consider it appropriate to grant them as interim orders pending final determination of the dispute.
• [23] The application is now referred back to the Commissioner to progress under the Act.

[5] Section 86(5) of the Standard Module