La Porte D'Or [2001] QBCCMCmr 5 (8 January 2001)

P G DanielsREFERENCE: 0008-2001

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 4207

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

Donjen Pty Ltd the owner of lot 141



P G DanielsI hereby order that the Body Corporate for La Porte D’Or community titles scheme 12681 must not until after 17 January 2001 remove or interfere with security cameras and monitors on scheme land.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0008-2001

“La Porte D'or” CMS 12681

The applicant, Donjen Pty Ltd, the owner of lot 141, has sought the following final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

A.	A declaration that the following resolution of the Committee for the Body Corporate made on 11 November 2000 is invalid and void;

“RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final decision is received from the Commissioner or any subsequent appeal”.

Further or in the alternative:-

B.	That the carrying out of the Resolution referred to in sub-paragraph A be stayed until further or other order.

Further or in the alternative:-

C.	That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from carrying out of the Resolution referred to in sub-paragraph A and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

D.	A declaration that the following Resolution Number 3 as contained in the Flying Minutes of the Committee for the Body Corporate dated 21 November 2000 is invalid and void;

“3. MINUTES DATED 11 OCTOBER, 2000 – ELECTRICITY TO GARAGE DOORS – RESOLVED. Not to accept payment for electricity as per Page 3 – Paragraph (B)(4) as Resolution does not conform with Section 26 of the Body Corporate Community Act 1977, copy attached, and that AM Strata Administration be instructed forthwith to reimburse any $20.00’s that may be received by the Body Corporate”.

Further or in the alternative:-

E.	That the carrying out of the said Resolution Number 3 referred to in sub-paragraph D be stayed until further or other order.

Further or in the alternative:-

F.	That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from carrying out of the Resolution referred to in sub-paragraph D and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

G.	That the owners of the following lots, namely:-

(i) Lot 141 (car space 11)

(ii) Lot 161 (car space 10)

(iii) Lot 177 (car space 9)

(iv) Lot 179 (car space 1)

(v) Lot 180 ( car space 2)

(vi) Lot 181 ( car space 5)

be permitted to retain the electric garage doors installed in the respective car parking areas over which such lots have exclusive use and that the connection of same to the electricity supply of the Body Corporate be retained on the current terms and conditions and such other reasonable terms and conditions as may be imposed by the Body Corporate from time to time.

Further or in the alternative:-

H. All lot owners be permitted to install an electric garage door to the respective car parking area over which each lot holds exclusive use and connect same to the electricity supply of the Body Corporate on such reasonable terms and conditions as may be imposed by the Body Corporate from time to time.

The Applicant, has also sought the following interim orders of an adjudicator:

A.	That the carrying out of the following resolution of the Committee for the Body Corporate made on 11 November 2000, namely:-

“RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final decision is received from the Commissioner or any subsequent appeal”.

Be stayed until further or other Order.

Further or in the alternative:-

B.	That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from carrying the out of the Resolution referred to in sub-paragraph A and procuring and assisting any person in the carrying out of same.

C.	That the carrying out of the following Resolution Number 3 as contained in the Flying Minutes of the Committee of the Body Corporate dated 21 November 2000, namely:-

“3. MINUTES DATED 11 OCTOBER, 2000 – ELECTRICITY TO GARAGE DOORS – RESOLVED. Not to accept payment for electricity as per Page 3 – Paragraph (B)(4) as Resolution does not conform with Section 26 of the Body Corporate Community Act 1977, copy attached, and that AM Strata Administration be instructed forthwith to reimburse any $20.00’s that may be received by the Body Corporate”.

be stayed until further or other Order.

Further or in the alternative:-

D.	That all the members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph D and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

That the whole of the Order of R A Meek, Adjudicator, given on 20 October 2000 in Reference 0582-2000 between Donjen Pty Ltd and Body Corporate for La Porte D’or Community Titles Scheme 12681 be stayed until further or other Order.

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)).

The applicant has sought interim orders in respect of Committee resolutions relating to the removal of security cameras and monitors and not to accept money for electricity.

I am dealing with this application on the basis of making an urgent interim order that will continue in force until a period of time has been given for the respondent Body Corporate to make a submission in respect of the application.

I conducted a telephone conference with Mr Mark O’Reilly, O’Reilly & Lillicrap, Solicitors for the applicant and Mr Stephen Dring, Teys McMahon, Solicitors for the Body Corporate on 5 January 2001.

The applicant alleges an interference with the electricity supply to its garage. Mr Dring has informed me that the Committee has not done anything in this respect. The Body Corporate had previously given an undertaking not to implement a motion passed by the Body Corporate at an extraordinary general meeting on 21 October 2000 which dealt with the matter.

The Body Corporate has attempted to remove the security cameras and monitors. It passed a resolution to that effect at a Committee meeting on 11 November 2000. The matter had also been previously considered by the Body Corporate at general meeting. I was informed by Mr O’Reilly that the applicant has filed an application in the District Court that seeks injunctive relief in respect of the removal of the security cameras and monitors. The matter has been listed to be heard on 15 January 2001. Mr Dring informs me that the Committee does not intend to remove the security cameras and monitors until 15 January 2001.

I have decided to make an order that prohibits the Body Corporate from interfering with the security cameras and monitors until 17 January 2001. The closing date of submissions will be 16 January 2001. By that time, the application before the District Court may have been heard. I have decided not to make an order in respect of the electricity supply to the garage. The interim orders sought relate to a resolution in respect of payment of money and not interference with the electricity supply. I also take into account the previous undertaking of the Committee and the indication given to me by Mr Dring that nothing has been done by the Committee.

I have given this matter urgent consideration. The purpose of making the order is to maintain the status quo while the Body Corporate is given the opportunity to make a submission. I am not in any way judging the actions of the Body Corporate nor giving an indication about whether a further interim order will be made. Further consideration will be given to all of the interim orders after the close of submissions.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

This matter will be given further consideration after the close of submissions.

P G DanielsREFERENCE: 0008-2001

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 4207

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

Donjen Pty Ltd the owner of lot 141



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

E.	That the carrying out of the following resolution of the Committee for the Body Corporate made on 11 November 2000, namely:-

“RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final decision is received from the Commissioner or any subsequent appeal”.

Be stayed until further or other Order.

Further or in the alternative:-

F.	That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from carrying the out of the Resolution referred to in sub-paragraph A and procuring and assisting any person in the carrying out of same.

G.	That the carrying out of the following Resolution Number 3 as contained in the Flying Minutes of the Committee of the Body Corporate dated 21 November 2000, namely:-

“3. MINUTES DATED 11 OCTOBER, 2000 – ELECTRICITY TO GARAGE DOORS – RESOLVED. Not to accept payment for electricity as per Page 3 – Paragraph (B)(4) as Resolution does not conform with Section 26 of the Body Corporate Community Act 1977, copy attached, and that AM Strata Administration be instructed forthwith to reimburse any $20.00’s that may be received by the Body Corporate”.

be stayed until further or other Order.

Further or in the alternative:-

H.	That all the members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph D and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

That the whole of the Order of R A Meek, Adjudicator, given on 20 October 2000 in Reference 0582-2000 between Donjen Pty Ltd and Body Corporate for La Porte D’or Community Titles Scheme 12681 be stayed until further or other Order.

is dismissed.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0008-2001

“La Porte D'or” CMS 12681

The applicant, Donjen Pty Ltd, the owner of lot 141, has sought the following final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

H.	A declaration that the following resolution of the Committee for the Body Corporate made on 11 November 2000 is invalid and void;

“RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final decision is received from the Commissioner or any subsequent appeal”.

Further or in the alternative:-

I.	That the carrying out of the Resolution referred to in sub-paragraph A be stayed until further or other order.

Further or in the alternative:-

J.	That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from carrying out of the Resolution referred to in sub-paragraph A and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

K.	A declaration that the following Resolution Number 3 as contained in the Flying Minutes of the Committee for the Body Corporate dated 21 November 2000 is invalid and void;

“3. MINUTES DATED 11 OCTOBER, 2000 – ELECTRICITY TO GARAGE DOORS – RESOLVED. Not to accept payment for electricity as per Page 3 – Paragraph (B)(4) as Resolution does not conform with Section 26 of the Body Corporate Community Act 1977, copy attached, and that AM Strata Administration be instructed forthwith to reimburse any $20.00’s that may be received by the Body Corporate”.

Further or in the alternative:-

L.	That the carrying out of the said Resolution Number 3 referred to in sub-paragraph D be stayed until further or other order.

Further or in the alternative:-

M.	That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph D and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

N.	That the owners of the following lots, namely:-

(i) Lot 141 (car space 11)

(ii) Lot 161 (car space 10)

(iii) Lot 177 (car space 9)

(iv) Lot 179 (car space 1)

(v) Lot 180 ( car space 2)

(vi) Lot 181 ( car space 5)

be permitted to retain the electric garage doors installed in the respective car parking areas over which such lots have exclusive use and that the connection of same to the electricity supply of the Body Corporate be retained on the current terms and conditions and such other reasonable terms and conditions as may be imposed by the Body Corporate from time to time.

Further or in the alternative:-

H.

All lot owners be permitted to install an electric garage door to the respective car parking area over which each lot holds exclusive use and connect same to the electricity supply of the Body Corporate on such reasonable terms and conditions as may be imposed by the Body Corporate from time to time.

The Applicant, has also sought the following interim orders of an adjudicator:

A.	That the carrying out of the following resolution of the Committee for the Body Corporate made on 11 November 2000, namely:-

“RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final direction is received from the Commissioner or any subsequent appeal”.

Be stayed until further or other Order.

Further or in the alternative:-

B.	That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from carrying the out of the Resolution referred to in sub-paragraph A and procuring and assisting any person in the carrying out of same.

C.	That the carrying out of the following Resolution Number 3 as contained in the Flying Minutes of the Committee of the Body Corporate dated 21 November 2000, namely:-

“3. MINUTES DATED 11 OCTOBER, 2000 – ELECTRICITY TO GARAGE DOORS – RESOLVED. Not to accept payment for electricity as per Page 3 – Paragraph (B)(4) as Resolution does not conform with Section 26 of the Body Corporate Community Act 1977, copy attached, and that AM Strata Administration be instructed forthwith to reimburse any $20.00’s that may be received by the Body Corporate”.

be stayed until further or other Order.

Further or in the alternative:-

D.	That the all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph D and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

E.	That the whole of the Order of R A Meek, Adjudicator, given on 20 October 2000 in Reference 0582-2000 between Donjen Pty Ltd and Body Corporate for La Porte D’or Community Titles Scheme 12681 be stayed until further or other Order.

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)).

On 8 January 2001, I made an urgent interim order in respect of the security cameras and monitors that lasted to 17 January 2001.

The District Court considered an application by the applicant on 15 January 2001 that raised similar issues to those raised in this application. That application was tied to a previous appeal of the dismissal of interim orders in application 582-2000. I am informed that the Court dismissed the application on the basis that it did not have equitable jurisdiction in respect of the matters raised.

There are essentially two parts to this application for interim orders. The first relates to a resolution of the Committee to remove security cameras and monitors. The second relates to a parking space of the applicant. I will consider each separately.

Security cameras and monitors

Security cameras and monitors were installed on scheme land. In a previous application 267-2000, an adjudicator made orders that the Body Corporate consider ratification of the Committee decision to install the equipment at a general meeting. That meeting occurred on 18 October 2000. The ratification motion was defeated. The adjudicator ordered that in these circumstances the resolution of the Committee to install the security cameras is deemed to have been invalid.

Subsequently, the Committee resolved as follows at a meeting on 11 November 2000:

RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final direction is received from the Commissioner or any subsequent appeal”.

The applicant seeks an interim order that restrains the implementation of the resolution. There is evidence before me that the Body Corporate has attempted to implement the resolution.

The applicant has also installed a security camera. It is linked to the security cameras and monitors that are to be removed. The Body Corporate resolved at a meeting on 21 October 2000 that the applicant remove the security camera. The validity of that resolution has been challenged in application 582-2000. The application for an interim order was dismissed. The Body Corporate has given an undertaking that no action will be taken in respect of the resolution until a final order is received or any subsequent appeal.

The applicant’s grounds are as follows:

“(iv) Removal of the security cameras other than the Level 26 security camera and the associated equipment such as monitors and video cassette recorder would render the Level 26 security camera inoperative and useless. The Level 26 security camera is connected to the monitors the subject of the said resolution of the Committee for the Body Corporate referred to in paragraphs 10A and 11A of this application. Without a monitor the security camera can be of no use or effect nor would it perform the task for which it was intended and for which any security camera is intended.

(v) By removing all of the monitors or at least the monitor to which the Level 26 security camera is linked, (without removing the Level 26 security camera) would have the same or similar effect to removing the Level 26 security camera. That is it would render the Level 26 security camera inoperative. Thus there would be little point in the Commissioner considering the Existing Application and the consideration of the appeal by the District Court. It would have the same effect as denial of the Existing Application without consideration of the Existing Application and rejection of the Appeal without consideration of the Appeal by the District Court.”

Teys McMahon have made a submission on behalf of the Body Corporate. The submission relevantly states:

“The body corporate denies the removal of its monitors and video recorder will render Donjen’s camera inoperable. Donjen’s camera will still be fully functional, however, Donjen will have to provide its own TV monitor and video recorder. Further, Mr Munz know the installation of the security to which he wanted to connect Donjen’s camera was challenged. Application 267-2000 to the Commissioner regarding the installation was lodged on 17 May 2000 and the Office of Body Corporate and Community Management sent Mr Munz a letter dated 26 May 2000 inviting him to make submissions in regard to the application. Donjen’s camera was not installed until July or August 2000.

Donjen clearly chose to install the camera knowing it would only have access to the monitor and video recorder whilst the body corporate kept its system. Mr Munz knew there was a possibility the system would not remain in place when he had Donjen’s camera installed.

Removing the monitors and video recorders does not render the camera on Level 26 inoperable. It merely means that Donjen’s personal security camera must also be connected to Donjen’s personal monitor and video recorder. Donjen should not receive the benefit of personal security at the expense of the body corporate.”

I decline to make the interim order sought. In my view, it is not necessary to make the order so that application 582-2000 can be properly considered. If the applicant is ultimately successful in that application, it is possible that the security camera can be used although not linked to the Body Corporate system. I also take into account the decision of the Body Corporate not to ratify the resolution of the Committee to install the security system.

The applicant states in its grounds that the security equipment is in the possession of Golden Gate Resort Pty Ltd and that any attempt by the Body Corporate to enter the property would be a trespass. Teys McMahon states in their submission on behalf of the Body Corporate that the Body Corporate seeks an order which gives it, “... express authority to enter the premises of the Golden Gate Resort for the purposes of recovering its equipment, or an order directing the Golden Gate Resort or its staff to remove the body corporate’s equipment and make it available to the body corporate.”

I do not think it is appropriate to make such an order in this application. If the Body Corporate cannot obtain access, then it is at liberty to make further application which will then be considered on its merits. Section 125 of the Act may be relevant should that be necessary.

Parking space

The Body Corporate passed the following resolution at its general meeting on 21 October 2000 in respect of the applicant’s exclusive use parking space:

RESOLVED THAT the Committee write to the owners of Lot 141 demanding the lot owner, at his own expense and within 14 days of receiving the letter from the Committee, disconnect the power supply to his garage door remote control unit which is currently connected to the Body Corporate’s electricity supply, failing which the Committee will disconnect the power supply at the expense of the owner of lot 141.

In application 582-2000 an interim order in respect of the above resolution was dismissed. As with the level 26 security camera, the Body Corporate has given an undertaking that no action will be taken in respect of the resolution until a final order is received or any subsequent appeal.

The applicant alleges an interference to the electricity supply to its car parking space. I was told by Mr Dring of Teys McMahon, during a teleconference with him and Mr O’Reilly, of O’Reilly & Lillicrap, solicitors for the applicant, that the Body Corporate had not interfered with the electricity supply.

It should be noted that interim orders sought, C and D, are directed at a resolution in respect of not accepting $20 payments for the supply of electricity. The applicant states in its grounds that the figure of $20 per annum had been agreed on between itself and the Body Corporate as payment for electricity in respect of the parking space. Even if I restrained the implementation of the Committee resolution, it would not have the effect of preventing interference with the electricity supply. It would mean that the Body Corporate would have to accept the $20 payment.

I do not think it is necessary to issue such an interim order. I take into account the previous undertaking of the Body Corporate. The matter can be fully considered when a final order is made.

Stay

Finally, the applicant has sought an order staying the interim order of an adjudicator in application 582-2000. It seems this matter was raised in the District Court on 15 January 2001. O’Reilly & Lillicrap state in a letter to myself that the Court declined to grant a stay as it would be of no effect, “To grant a stay of those orders would be staying an order not to make an order.” I respectfully agree. The application for interim orders was dismissed. There is no order to stay.

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.