Paringa [2001] QBCCMCmr 20 (15 January 2001)

P G DanielsREFERENCE: 0691-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15015
Name of Scheme:	Paringa
Address of Scheme:	28 Riverview Parade SURFERS PARADISE QLD 4217

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

Keith Alan Leitch and Karen Loraine Leitch the owners of lot 7



P G DanielsI hereby order that the application for the following interim orders:

Property not to be listed for sale or rent until enclosure is removed.

Investigate tenant’s position on Body Corporate Committee.

Firstly, we question the legality and regularity of a non-owner serving as a member of a Body Corporate committee, and ask that the Unit 8 tenant, Mr. Christopher Fraser Howell, be removed from the Paringa committee if the service of a non-owner is out of order.

Secondly, we are concerned that Unit 8 may be listed for sale and/or sold before this matter is resolved, thus further blurring the issue of responsibility. We therefore ask that such a listing be prohibited pending resolution of this matter. If that is not possible, we ask that this matter be placed on record in such a way that any potential buyer of Unit 8 is certain to be aware of the dispute.

is dismissed.1y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0691-2000

“Paringa” CMS 15015

The applicants, Keith Alan Leitch and Karen Loraine Leitch, the owners of lot 7, have sought the following final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

Immediate removal of illegal and unapproved enclosure, which was constructed without warning and permission around the common property between units 7 & 8.

Immediate restoration of said common area to its original condition.

The applicants have also sought the following interim orders:

Property not to be listed for sale or rent until enclosure is removed.

Investigate tenant’s position on Body Corporate Committee.

The applicants clarified the interim orders sought in a letter dated 11 December 2000. They state:

Firstly, we question the legality and regularity of a non-owner serving as a member of a Body Corporate committee, and ask that the Unit 8 tenant, Mr. Christopher Fraser Howell, be removed from the Paringa committee if the service of a non-owner is out of order.

Secondly, we are concerned that Unit 8 may be listed for sale and/or sold before this matter is resolved, thus further blurring the issue of responsibility. We therefore ask that such a listing be prohibited pending resolution of this matter. If that is not possible, we ask that this matter be placed on record in such a way that any potential buyer of Unit 8 is certain to be aware of the dispute.

Section 197(4) 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)).

This application mainly relates to an allegedly unlawful structure on the common property. The application also relates to Mr Howell being on the Committee.

I will consider each interim order separately.

The first order relates to Mr Howell being on the Committee. I decline to make an interim order in respect of the matter. The complaint of the applicants is that the presence of Mr Howell on the Committee is interfering with the proper resolution of the dispute relating to the allegedly unlawful structure on common property. The dispute will be determined in accordance with the Act. In my view, it is not necessary to make the order sought to allow a proper resolution of the dispute. The dispute can be properly resolved even though an interested person is on the Committee. This interim order will be further considered when the final orders are determined.

The second order relates to not listing for sale or renting lot 8 until this dispute is resolved or the enclosure removed. Alternatively, an order is sought that this dispute be placed on public record such that “... any potential buyer of Unit 8 is certain to be aware of the dispute.” The dispute is on public record in the Commissioner’s Office. A search of the application can be made pursuant to section 247 of the Act which provides as follows:

Commissioner must give certain information on application

247. On receiving a written application accompanied by the fee

prescribed under a regulation, the commissioner must inform the applicant

in writing—

(a) whether an order has been made within the previous 6 years

under this chapter or a corresponding previous law about a

community titles scheme mentioned in the application and, if so,

the nature and effect of the order; and

(b) whether there is, in relation to the scheme, an application for an

order of an adjudicator that has not been disposed of and, if so,

the nature of the application.

In my view, the public record of the dispute is sufficient.

I dismiss the application for interim orders.

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.