La Porte D'Or [2001] QBCCMCmr 182 (28 March 2001)

C G YOUNGREFERENCE: 0179-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D' Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

C G YOUNGI hereby order that the application for an interim order that - 2n

1. The repair and maintenance of those parts of the air conditioning system with each lot owner’s apartment (fan coil units and drip trays) are the responsibility of the respective lot owners; and

2. Lot owners are responsible for any damage caused to other lots by their respective air conditioning units,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0179-2001

“La Porte D' Or” CMS 12681

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

3. The repair and maintenance of those parts of the air conditioning system with each lot owner’s apartment (fan coil units and drip trays) are the responsibility of the respective lot owners.

4. Lot owners are responsible for any damage caused to other lots by their respective air conditioning units.

The applicant has sought an interim order in the same terms as the orders quoted above.

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 has not sought any interim relief in the matter but that the two final orders being sought be the subject of an interim order in a final determination of the matter.




There is no aspect of urgency associated with this application that requires that an interim order be made. Additionally, the nature of the subject matter, namely determining the cost responsibility for the repair and maintenance of owners’ air-conditioning units, does not warrant the issue of an interim order. Rather, the matter requires full investigation, including submissions from other parties to the dispute, 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