Admiral North [2000] QBCCMCmr 188 (13 April 2000)

RA MeekREFERENCE: 0194-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10927
Name of Scheme:	Admiral North
Address of Scheme:	14 Macarthur Parade MAIN BEACH QLD 4217

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

RA MeekI hereby order that the application by the body corporate for an interim order that that the body corporate committee undertake removal of structures erected on common property under exclusive use of lot 48, at the cost of the owner of lot 48, is dismissed. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0194-2000

“Admiral North ” CMS 10927

The applicant, the Body Corporate for Admiral North has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An interim order that the body corporate committee undertake removal of structures erected on common property under exclusive use of lot 48, at the cost of the owner of lot 48.

The body corporate also sought an interim order as a Committee Meeting could be called at any time.

Presumably the purpose of obtaining an interim order is that the committee could then take steps to implement the order, if favourable, at its next committee meeting.

Section 225(1) provides that 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 to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 225(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be refused, in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances. However, given that an interim order may be made ex parte (ie. without reference to, or submission from the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be refused. It is a matter for an adjudicator to determine in respect of each application.

There is no aspect of urgency associated with this application that requires that an interim order be made. The structures which the body corporate seek to have removed are not about to be erected; rather they have been in place for approximately 12 months now. An interim order would only be relevant to prevent the threatened erection of structures where there were questions as to their legality. Moreover, the nature of the matters raised are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submissions from other parties to the dispute, before any order can be made. Accordingly, this application for an interim order is dismissed.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course. n