Grand Mariner [2000] QBCCMCmr 40 (1 February 2000)

P G DanielsREFERENCE: 0031-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4264
Name of Scheme:	Grand Mariner
Address of Scheme:	12 Commodore Drive PARADISE WATERS QLD 4217

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

Elizabeth Mary Wheeler a co-owner of lot 39,



P G DanielsI hereby order that the application for an interim order that:

“The Body Corporate for “Grand Mariner” make available to the applicant at least two remote control garage door openers for each lot.”

is dismissed.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0031-2000

“Grand Mariner” CMS 4264

The applicant, Elizabeth Mary Wheeler, a co-owner of lot 39, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

The Body Corporate for “Grand Mariner” make available to the applicant at least two remote control garage door openers and more if the applicant’s needs so dictate.

The Applicant, has also sought the following similar interim order of an adjudicator, quote -

That the Body Corporate for “Grand Mariner” make available to the applicant at least two remote control garage door openers for each lot.

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 the supporting grounds, the applicant states that her husband is an incapacitated person to the extent that he must use a ‘wheelie-walker’.

The Body Corporate installed a new security system for the building in 1999. The Committee resolved that “... one black garage security remote control per car space has or will be issued.” The applicant and her husband were issued with one remote controller on 29 October 1999.

The applicant applied for approval to be given a second remote control. Approval was denied. The applicant states that when she leaves the building with the control, her husband cannot leave the building. This is because the garage exit/entry point is the only safe place for him to walk with the ‘wheelie-walker’. Alternatively, if she leaves the control with her husband, then it becomes difficult for her to re-enter the building on return.

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 applicant has been using one controller for approximately three months. 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.

The applicant has not sought interim relief, but rather that a final order be issued as an interim order. The interim and final orders that have been sought are basically the same even though the wording is slightly different. 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.

For the reasons detailed above, 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.