Melody Mews [2002] QBCCMCmr 579 (18 September 2002)

DJ ReardonREFERENCE: 0454-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19382
Name of Scheme:	Melody Mews
Address of Scheme:	31-33 Holland Crescent CAPALABA QLD 4157

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Melody Mews community titles scheme 19382

DJ ReardonI hereby order that the Body Corporate for Melody Mews shall not carry out, or engage a person to carry out, repairs to faults or defects in the common property, or Lots 9 and 10, as detailed in the report and letter provided to the Body Corporate by G.K Consulting Engineers Pty Ltd, dated 6 February 2002 and 27 June 2002 respectively.

I further order that the Owners of Lots 9 and 10 shall not carry out, or engage a person to carry out repairs to faults or defects in the common property, or Lots 9 and 10, as detailed in the report and letter provided to the Body Corporate by G.K Consulting Engineers Pty Ltd, dated 6 February 2002 and 27 June 2002 respectively.

I further order that within 7 days of the date of this order, the Secretary for the Body Corporate must provide a copy of this order and the accompanying statement of reasons to each owner of a lot included in the Melody Mews community titles scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0454-2002

“Melody Mews” CMS 19382

1.	Orders sought

The Applicant, the Body Corporate for Melody Mews community titles scheme 19382, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), determining responsibility for particular repairs to buildings, and common property primarily affecting Lots 9 and 10.

The Applicant has also sought an interim order of an adjudicator that neither the Body Corporate nor Owners undertake any relevant repairs until the application is determined.

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)).

The “Melody Mews” community titles scheme consists of 16 lots and common property, and was originally created under a group title plan of subdivision (now known as a standard format plan of subdivision). The community management statement for “Melody Mews” indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2.	Subject matter of the application

As part of the supporting grounds to the application, the Applicant has provided an engineer’s report by G.K. Consulting Engineers Pty Ltd dated 6 February 2002, prepared following an inspection of Lots 9 and 10, which among other things, details cracks in walls, cornices and sills, as well as identifying walls that have separated from ceilings.

The Applicant has also provided a further letter from G.K. Consulting Engineers Pty Ltd dated 27 June 2002, which contains the following comments,

“I refer to the report on Melody Mews, and inform you that from information provided by the soil report and recent on site investigations, the end of the block of units which contains units 9 and 10 had sunk due to subsidence caused by insufficient backfill of the adjacent sewer line which I believe is common property infrastructure, it is also partly caused by alterations in moisture content by the close proximity of the tree to the front of unit No. 10.

The subsidence is the major cause of damage in this case.”

Generally, the body corporate for a community titles scheme has an obligation to maintain the common property for the scheme in a good condition. The owner of a lot in a community titles scheme has an obligation to maintain the lot in a good condition. In the case of a scheme created under a group title plan, an owner’s responsibility usually includes the exterior surfaces of buildings located within the boundaries of the lot.
This application seeks determination of responsibility for repairs to Lots 9 and 10, and raises the question of whether the general position outlined above is affected by the defect in common property identified by the engineer.

3.	Interim orders

At this time, I am solely concerned with the application for an interim order. In any consideration of an application that seeks the making of an interim order, it is necessary to determine 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 that 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 expeditious, and objective consideration, then the request for an interim order may be refused. It is a matter for an adjudicator to determine in respect of each application.

4.	Determination

In the circumstances, I consider that it is in the interests of resolving this issue if both the Body Corporate and the Owners of Lots 9 and 10, refrain from carrying out repairs to defects in the buildings and common property as identified in the engineer’s reports, pending determination of this application. I consider that this will facilitate a proper investigation of the matter, including allowing affected parties to make a written submission about the application. I intend to make an interim order to this effect.

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