Pioneer Bay Apartments [2000] QBCCMCmr 639 (6 December 2000)

P J HANLYREFERENCE: 0654-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16810
Name of Scheme:	Pioneer Bay Apartments
Address of Scheme:	St Martins Lane CANNONVALE QLD 4802

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

Sharon Lee Holland, the owner of lot 13.


I hereby order that the application for an interim order that that the body corporate employ a builder to repair the damage and refit the unit so it can be relet to remove any further financial burden, is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0654-2000

“Pioneer Bay Apartments” CMS 16810

The applicant, Sharon Lee Holland, the owner of lot 13, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That resolution 12 of the annual general meeting of the body corporate for Pioneer Bay Apartments CTS 16180 held at Whitsunday Management on 25 October 1999 be upheld.

The applicant also sought the following interim order of an adjudicator under the Act, quote –

To have the body corporate employ a builder to repair the damage and refit the unit so it can be relet to remove any further financial burden.

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 applicant states that the basis of the dispute stems from damage caused to her lot by a broken water pipe. The applicant further states that a claim was made on the body corporate insurance, but was rejected. The applicant further states that the time lapse has been brought about because the insurance company demanded various reports be obtained, and would not reply to communications from the body corporate.

The committee was invited to respond to the application. The chairperson stated that although the body corporate had previously agreed to reimburse the applicant for the damage to her lot, that decision was recently rescinded. The chairperson also noted that the applicant had chosen not to insure the contents of her lot. The chairperson further stated that the body corporate was concerned over the length of time taken to repair the lot.

I note that the drainage investigation report was prepared on 11 February 2000. I further note that the body corporate insurance company had declined to indemnify the body corporate prior to the annual general meeting held in 1999. The applicant states that the time lapse when dealing with the insurance company was prolonged, however it appears that a further period of at least ten months has elapsed since the drainage report was prepared, and the applicant has not provided a satisfactory explanation of that time lapse. Furthermore the applicant has an obligation to mitigate her own loss. There appears to have been nothing preventing her from having the repair work carried out herself, so that she could at least relet the lot. The question of responsibility for the cost of the repair work could then have been determined.

There is no aspect of urgency associated with this application that requires that an interim order be made. 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 the possibility of further enquiry directed to the civil engineer who undertook the drainage investigation, before any order can be made. 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.2n