Anzac Square Arcade [2002] QBCCMCmr 269 (7 May 2002)

REFERENCE: 0262-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27978
Name of Scheme:	Anzac Square Arcade
Address of Scheme:	Cnr Adelaide & Edward Street, BRISBANE CITY QLD 4000

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

Gregoria Stephanie Makras, the occupier of lot 22



I hereby order that the application for an interim order that the sale of fresh salads from lot 16 be stopped until this dispute has been resolved, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0262-2002

“Anzac Square Arcade” CMS 27978

The applicant, Gregoria Stephanie Makras, the occupier of lot 22, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The order is for lot 16 Anzac Square Arcade to return to original usage as stated in the CMS

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

If possible I would like to put an interim order to stop the sale of fresh salads from lot 16 Anzac Square Arcade (Juice N’ Java) until this dispute has been resolved.

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.

In the supporting grounds, the applicant states that the occupiers of lot 16 are selling certain lines, such as fresh salads, freshly squeezed juices, fruit smoothies, fruit salad and fruit frappes which are in direct competition with her lines.

This is not a matter in which an interim order can properly be made. The matters alleged by the applicant require detailed investigation, and the occupier of lot 16, who has not as yet been named as a respondent to the application, must be given the opportunity of responding to the application. I therefore propose to dismiss the application for an interim 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.