The Waratah Main Beach [2002] QBCCMCmr 38 (29 January 2002)

DJ ReardonREFERENCE: 0039-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16570
Name of Scheme:	The Waratah Main Beach
Address of Scheme:	22 Montgomery Avenue MAIN BEACH QLD 4217

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

Leticia Ann Hill, the Co-owner of Lot 34


DJ ReardonI hereby order that the application for an interim order

“To immediately have the committee remove the offending blackboard”

is dismissed2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0039-2002

“The Waratah Main Beach” CTS 16570

The applicant, the Co-owner of Lot 34, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“I want the blackboard and easel that the committee and Bill Clayton, have put in our foyer removed.”

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

“To immediately have the committee remove the offending blackboard.”

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)).

It appears that this application is primarily concerned with a blackboard and easel that have been placed in the common property building foyer. In the supporting grounds of the application, the applicant expresses a view that the items (particularly the blackboard) are inappropriate for the building foyer in that they detract from the appearance of the common property.

In this particular decision I am solely concerned with the application for interim orders. 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.

I consider that the interim order sought by the applicant is effectively seeking a final determination of the issues concerning the blackboard. Before I can make a final determination on the matters raised in the application, it is necessary to fully investigate the issues raised by the application, including, but not limited to, a consideration of any approvals for the placement of the items that may have been provided by the committee or the body corporate. I also consider that it is necessary to allow the committee an opportunity to make a written submission in response to the application, before a final determination is made.

Further, while it may be preferable for all parties involved to have a timely resolution of the application, I do not consider that the circumstances as outlined in the application are suggestive of an emergency or urgent situation, which would warrant the making of an interim order.

Accordingly, this application for an interim order is refused.

I do wish to emphasise to parties that I am dismissing this application for an interim order on the basis that the nature of the interim order sought by the applicant is not appropriate for resolution as an interim order. In dismissing the application for an interim order, I am not making any determination as to the merits of the application for final 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.