Admiralty Towers [2000] QBCCMCmr 607 (23 November 2000)

P J HANLYREFERENCE: 0641-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16440
Name of Scheme:	Admiralty Towers
Address of Scheme:	35 Howard Street BRISBANE QLD 4000

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

Paul John Rogers and Mary Bernadette Rogers, the owners of lot 152.


I hereby order that the application for an interim order that the body corporate committee stop instantly the practice of towing away vehicles parked in the visitors parking space pending the outcome of the next election of office bearers, is dismissed.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0641-2000

“Admiralty Towers” CMS 16440

The applicants, Paul John Rogers and Mary Bernadette Rogers, the owners of lot 152, have 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 be ordered to stop instantly the practice of towing away vehicles parked in the visitors parking space pending the outcome of the next election of office bearers.

Section 225(1) of the Act 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.

The matter of compliance with by-laws is not a matter which can be dealt with by way of interim order. It is a matter which requires full investigation before the making of any order. I note that in this instance, there is a by-law dealing with visitor parking, and that the body corporate resolved at the annual general meeting held on 29 March 2000 to amend the by-law slightly so as to limit the visitor parking to 6 hours within any continuous 24 hour period. I also note that a new community management statement has not yet been lodged as a result of the amendment.

In the circumstances, I am not satisfied that the applicants have established that either the nature or urgency of the circumstances warrant the making of an interim order, particularly as the examples of visitor parking provided by them all appear to breach the by-laws. 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.2y