Palm Springs Residences [2002] QBCCMCmr 315 (21 May 2002)

C G YOUNGREFERENCE: 0302-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29467
Name of Scheme:	Palm Springs Residences
Address of Scheme:	1 Twenty First Avenue PALM BEACH QLD 4221

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

Julie Anne LILLEY and Alan John LILLEY, as the co-owners of Lot 106 and holders of the Letting and Management Agreement for the scheme,


C G YOUNGI hereby order that the application for an interim order that the illuminated accommodation sign installed on the common property by Alan and Julie Lilley of Lot 106, who hold the Letting and Management Agreement for the scheme, be allowed to remain, is dismissed. 2y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0302-2002

“Palm Springs Residences” CMS 29467

The applicants, Alan and Julie Lilley of Lot 106, Resident Unit Managers, have sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“A declaration that:

a)	The erecting of the sign was within the powers of the manager as set out in the by-laws of the scheme; and

b)	The sign is within the requirements of the by-laws of the scheme; and

c)	The sign does not have to be removed from its present position.”

JURISDICTION:
This is a dispute between the applicants Alan and Julie Lilley in their capacity as –

(a) the co-owners of Lot 106; and

(b) the holders of a service contract (management agreement) and letting agent agreement for the scheme,

and the body corporate, as the respondent, concerning the removal of an illuminated accommodation sign installed by them on the common property. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

Section 197 of the Act provides that an application may be referred to an adjudicator for determination without submissions having first been sought from the respondent and perhaps other interested parties, and this course has been adopted as appropriate in this instance. However, the respondent body corporate (committee) and other owners will be provided with a copy of the application and invited to make a submission before a final order to the application is made.

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).


APPLICATION:
The applicants submit that in their capacity both as: the Resident Unit Managers holding the management and letting agreement for the scheme, under By-law 14.3; and as the co-owners of Lot 106, under By-law 34.1, they believe they had the authority to erect the illuminated accommodation sign. These by-laws provide as follows –

“By-law 14.3

The Manager shall be permitted without the consent of the Committee to display reasonable signs or notices on the common property for the purposes of offering for sale or lease or letting any lot in the Community Titles Scheme, provided that such signs shall be of a standard that shall not detract from the overall appearance of the common property.”

(Adjudicator’s Note: By-law 14.4 defines “Manager” as including the person holding the management and letting agreement for the scheme, that is, the applicants).

“By-law 34.2

All display signs or notices as allowed for in By-law 34.1 shall be attractive and tasteful having regard to the general appearance of the common property and shall not, at any time and from time to time, be more in terms of number and size than is reasonably necessary.”

(Adjudicator’s Note: By-law 34.1 provides that, “the owners or occupier of Lot 106 may without the consent of the Committee display signs or notices in or within the Community Titles Scheme for the purposes of offering for lease or letting any lot within the Community Titles Scheme.” The applicants are the owner of Lot 106).

Briefly, the facts as related by the applicants are as follows. The applicants made application to the Gold Coast City Council (“GCCC”) for permission to install the sign by signing the relevant form, “relying on the by-laws”. I take this to mean that the applicants did not refer the application through the body corporate committee as the body responsible for the administration, management and control of the common property (see sections 87 and 114 of the Act). The committee then met and resolved that: the sign should be removed; the original sign be approved; the applicants had no authority to sign the GCCC application. In consequence, the applicants received letters from the GCCC withdrawing its approval and the Body Corporate Manager to remove the sign.


DETERMINATION:
The interim order sought by the applicants is in fact a final order as, if granted, it finally resolves the dispute the applicants have with the committee. In other circumstances, an appropriate interim order where the committee has ordered the removal of some thing from common property, would be to restrain the committee from acting pending determination of the application by final order.

However, here a body external to the scheme, namely the GCCC, is involved and an adjudicator has no authority to issue a restraining order against a local government organisation. Also, any order against the committee for it to make application to the GCCC is only appropriate as a final order. In any case, I note that the GCCC has granted an extension to 7 June 2002. Although the order will not have been made by that time (three weeks is the normal period allowed for owners to make submissions, plus an additional week for the applicant to respond to submissions), the applicants could seek a further extension based on the matter being referred for adjudication and, in my experience, it would be given. Accordingly, unless some urgent situation arises in regard to the sign, I believe the matter will be able to be resolved satisfactorily by final order after owners have had their say in the matter.

For the above reasons, I have dismissed the application for an interim order that the sign be allowed to remain.

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.2y