Surfers International [2000] QBCCMCmr 19 (20 January 2000)

REFERENCE: 0001-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12247
Name of Scheme:	Surfers International
Address of Scheme:	7 Trickett Street Surfers Paradise QLD 4217

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

Accommodation Unlimited Pty Ltd, the owner of lot 137



I hereby order that the application for interim orders that:

1.

The owner of Lot 14, CY Rent a Car refrain from using exclusive use car spaces in the basement car park of Surfers International that are allocated to Lots under the Management of Accommodation Unlimited Pty Ltd and that the Body Corporate of Surfers International do all in its power to enforce the By-laws of Surfers International in respect of exclusive use car spaces.

2.	Assignment or rental of car spaces not be permitted until this dispute has been resolved, and that assignment or rental of car spaces for residential units not be permitted.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0001-2000

“Surfers International” CMS 6346

The applicant, Accommodation Unlimited Pty Ltd, the owner of lot 137, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the owner of Lot 14 (Newco Pty Ltd) a shop in Surfers International operating as CY Rent a Car refrain from using exclusive use car spaces in the basement and ground level car parks of Surfers International that are not allocated for their exclusive use in the current CMS. That the Body Corporate of Surfers International do all in its power to enforce the By-laws of Surfers International in respect of exclusive use car spaces, parking on common property and washing cars on common property.

The Applicant, has also sought the following interim orders of an adjudicator -

1.

That the owner of Lot 14, CY Rent a Car refrain from using exclusive use car spaces in the basement car park of Surfers International that are allocated to Lots under the Management of Accommodation Unlimited Pty Ltd and that the Body Corporate of Surfers International do all in its power to enforce the By-laws of Surfers International in respect of exclusive use car spaces.

2.	That assignment or rental of car spaces not be permitted until this dispute has been resolved, and that assignment or rental of car spaces for residential units not be permitted.

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)).

The applicant is the manager and letting agent for this scheme. It also owns a lot. It appears that the applicant is in dispute with the owner of lot 14, Newco Pty Ltd. Newco Pty Ltd operates a business named CY Rent A Car from lot 14. The applicant complains that Newco parks cars on the common property and exclusive use car spaces.

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, 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 Body Corporate Manager has made a submission on behalf of the Committee which indicates that the Committee considered this issue on 14 January 2000. The Manager extracted the relevant part of the minutes which state as follows:

“5. CARPARKING

Consideration was given to the ongoing problems with unauthorised persons parking in exclusive/common car spaces at the Trickett St ground floor level and to the apparent ongoing dispute between the Building Manager and CY Car Rentals (Lot 14) about use of basement spaces and alleged damage to vehicles parked there.

Owners were reminded that designated car spaces remained common property of the body corporate but that the occupier of each lot was himself/herself entitled to the use of the car space designated to that particular lot. Owners were further reminded that permitting non-residentials to occupy their car space adversely affected building security.

RESOLVED the body corporate engage a contractor to paint on the wall of each car space the unit/shop number that was entitled to exclusively use that car space.

RESOLVED further that a circular be issued to all owners advising that unless they notified the body corporate of relevant details about any other person permitted to use that owner’s car space any vehicle found in that unit’s space that did not belong to the occupier of that unit would be considered an unlawful user of the car space.”

The Committee has taken action in respect of this matter. I take this into account when determining that this matter is not urgent.

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 before any order can be made. Accordingly, this application for interim orders is dismissed.

The applicant has not sought interim relief, but rather that a final order be issued as an interim order. There are two interim orders sought and only one final order. However, the interim and final orders all relate to the same subject matter. In the circumstances, I am not satisfied that the applicant has established that either the nature or urgency of the circumstances warrant the making of an interim order. Accordingly, this application for an interim order is refused.

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.