Talbot Manor [2001] QBCCMCmr 560 (8 November 2001)

RA MeekREFERENCE: 0553-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8610
Name of Scheme:	Talbot Manor
Address of Scheme:	18-22 Albert Street EAGLEBY QLD 4207

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

James Alfred Glenn, the owner of lot 12


RA MeekI hereby order that the application by James Alfred Glenn, for interim orders, quote –

1. That the body corporate of Talbot Manor be ordered to immediately treat the termite infested retaining wall behind unit 12 to prevent further infestation of the unit, and that the retaining wall is not disturbed until it is confirmed that this treatment has effectively destroyed the active termite infestation, so as not to again drive the termites into the complex in search of a replacement food source.

2. That a concrete spoon drain be installed behind unit 12 immediately, as per the quote of OpalCorp to control water run off from surrounding units,

is dismissed. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0553-2001

“Talbot Manor” CMS 8610

The applicant James Alfred Glenn, the owner of lot 12 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

We seek that the body corporate of Talbot Manor be ordered to : replace the retaining wall at the rear of unit 12, repair guttering at rear of same unit, attend to requirements for effective drainage, and implementation of a termite control strategy. We seek that this matter be dealt with immediately, so as not to compromise the structure of the unit further.

The applicant has also sought interim orders in the following terms -

i. That the body corporate of Talbot Manor be ordered to immediately treat the termite infested retaining wall behind unit 12 to prevent further infestation of the unit, and that the retaining wall is not disturbed until it is confirmed that this treatment has effectively destroyed the active termite infestation, so as not to again drive the termites into the complex in search of a replacement food source.

ii. That a concrete spoon drain be installed behind unit 12 immediately, as per the quote of OpalCorp ... to control water run off from surrounding units. ...

Section 225(1) 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.

In respect of the interim orders, the applicant states that –

I feel that these orders are necessary to ensure the integrity of the repairs, and the unit, against further infestation, which may occur in the intervening period before your office can make other orders.

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 submissions from other parties to the dispute, before any order can be made. Accordingly, this application for an interim order is dismissed.

Moreover, there are indications that the body corporate might already have, or be in the process or, organising the repairs in question. This is even further reason for not making any interim order as sought at this stage.

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. n