Published: 16 August 2010.

Contributed by Liat Walker & Ros Janes of Success Law

Many applications are made to the Office of the Commissioner for Body Corporate and Community Management for an interim order.  The fact that a matter is urgent (in the eyes of the applicant) does not necessarily mean that it justifies the granting of an interim order.

An interim order, by its very nature, provides for injunctive relief.  Therefore, there are number of threshold issues to be considered before an adjudicator will grant an interim order.  An interim order does not consider the substantive issues in the application itself, but rather whether the application raises serious legal questions and that the balance of convenience between the parties justifies the granting of injunctive relief.

The threshold issues to overcome before an interim order will be granted are -

• is interim relief justified
• is there a serious legal question, and
• what is the balance of convenience.

Is interim relief justified?
An interim order will be made where the adjudicator is satisfied that it is necessary because of the nature or urgency of the circumstances to which the application relates.

Is there a serious legal question?
Has the applicant raised any serious questions for final determination?
The applicant must be able to establish that there has been a breach of the Body Corporate and Community Management Act 1997, or the regulation module or the by-laws.   Non-compliance with the legislation of an insubstantial nature will not render a meeting void or a motion invalid, particularly where no harm has resulted from that non-compliance.
There must also be evidence that a party is prejudiced or will suffer damage as a result of any failure to comply with the legislative requirements or the by-laws.

What is the balance of convenience?
In weighing up the pros and cons of whether interim relief should be granted, the adjudicator must balance the inconvenience of granting relief now if the final order was ultimately refused as against the inconvenience of refusing relief now if the final order was ultimately granted.

When is an interim order granted?
An interim order will be granted to prevent serious or irreparable harm.   An interim order may be granted in the following circumstances –

• to stop a party doing something, e.g., to carry out work to the common property;
• to stop a motion being put into effect, e.g., to enter into a contract, or
• to maintain the status quo.

Whilst many applications are made to stop a meeting being held, these are usually unsuccessful. However, an order may be made that the resolutions themselves cannot be put into effect until a final order is made.  Therefore, the meeting goes ahead, the motions are voted on, but then held in abeyance until a final order is made about their validity.  If the application is dismissed, then the motions can be put into effect without any further delay.
An interim order may be made ex parte (without any input from the other affected party), but generally the Commissioner’s Office tries to contact the other party to provide a submission, even if it is only by telephone. After the interim order is made, the application will proceed in the normal manner with submissions being sought from all relevant persons, which may include all lot owners.

Effect of interim order
An interim order only has effect for the period stated in the order (but not for longer than one year).  It can be extended, varied, renewed or cancelled by an adjudicator.  An interim order will automatically lapse upon the application being withdrawn or the final order being made.

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