Fig Tree Cottages [2001] QBCCMCmr 533 (15 October 2001)

C G YOUNGREFERENCE: 0598-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10393
Name of Scheme:	Fig Tree Cottages
Address of Scheme:	9-11 Walton Street SOUTHPORT QLD 4215

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

Janet Elizabeth MARLES, the owner of Lot 1,



C G YOUNGI hereby order that Harold Frank Goldsworthy and Yvonne Doreen Goldsworthy, the co-owners of Lot 2, must not take any step to obtain possession or occupy any part of the double garage situated on common property in the north-western corner of the scheme, now occupied and used by the owner of Lot 1, Janet Elizabeth Marles, pending determination of this application by final order. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0598-2001

“Fig Tree Cottages” CMS 10393

The applicant, Janet Marles of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“We are seeking resolution to the ownership and/or usage rights of the individual units to the garages and carports within the property. Five years ago I purchased Unit 1 and was told I also owned the double garage marked as Unit 1. This Unit 1 has been sold four times with the double garage & Unit 2 has been sold four times with a carport marked “2” since 1982.”

The applicant has also sought the following interim order of an adjudicator, quote -

“That the current carparking, garage & carport arrangements continue as they presently are, until this matter is resolved. This matter is urgent as the lawyers re[presenting Unit 2 have stated their client will remove the garage door from Unit 1’s double garage and remove all items of property stored within after 2pm on Tuesday 16^th October 2001.”

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) of the Act).

Section 197 provides that an application for an interim may be referred to an adjudicator for determination without submissions having first been sought from the respondent and perhaps other interested parties, and this has been followed in this instance. However, the respondent will be invited to make a response to the allegations put by the applicants, the Goldsworthy’s, before any final order is made.

In the supporting grounds the applicant states that after the car spaces were originally allocated in 1982, and sometime before November 1984, an alternative arrangement was decided upon whereby the carports for Lots 1 and 2 both became garage spaces for the owner of Lot 1, and an additional carport was erected on common property for the use of the owner of Lot 2. The applicant states that this was at some cost to the owner of Lot 1 at the time. She states further that both Lots 1 and 2 have each been sold a number of times since under this arrangement. She states that her purchase price included a component in recognition of the double garage, and for the respondent owner of Lot 2, Harold Goldsworthy, to now want the original Lot 2 carport space returned, is inequitable. The applicant has submitted copies of some body corporate documents in support of her argument.

In this order I am dealing solely with the application by Marles for an interim order to prevent the respondent Goldsworthy’s occupation of this garage space until such time as the application is resolved by final order. Marles has enclosed a copy of a letter from Goldsworthy’s solicitor, Deborah Jean-Therese Kelly of Surfers Paradise, which forewarns of this action. The reference in the letter to Marles undertaking to vacate the garage space within 30 days of the meeting, ignores the condition attaching to Marles promise as evidenced in the copy of the minutes of the body corporate of 16 September 2001, namely, the words “unless commencing a legal challenge”. This application was lodged within the 30 day period.

In any case, I consider the circumstances and the impending possession of the garage space warrant my granting the application to prevent any possessive action being taken by Goldsworthy, and this interim order will remain in force until the matter is determined by final order.

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.

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.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2n