Bundaberg Northside Plaza [2002] QBCCMCmr 59 (5 February 2002)

C G YOUNGREFERENCE: 0050-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5058
Name of Scheme:	Bundaberg Northside Plaza
Address of Scheme:	90 Gavin Street NORTH BUNDABERG QLD 4670

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

Jeffery William BEAVEN and Barbara Elaine BEAVEN, as the co-owners of Lot 1,




C G YOUNGI hereby order that the application for an interim order to –

“stop the Body Corporate from taking action to remove the Shipping Container in question in the event of the meeting of the 31^st January (incorrectly shown as “December”) 2002 being successful in revoking the decision to allow it, until the adjudicator can make a final decision.”,

is, upon the failure of the meeting to proceed, dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0050-2002

“Bundaberg Northside Plaza” CMS 5058

The applicants, Jeffery and Barbara Beaven of Lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“That the meeting called for the 30^th January 2002 be disallowed due to the parties all having access to the previous meeting to vote & not exercising that right at the appropriate time. To call a second meeting to revoke a decision they had ample opportunity to vote on at the first is unjustified.”

The applicants have also sought the following interim order of an adjudicator, quote -

“We are now seeking an Interim Order to stop the Body Corporate from taking action to remove the Shipping Container in question in the event of the meeting of the 31^st January (incorrectly shown as “December”) 2002 being successful in revoking the decision to allow it, until the adjudicator can make a final decision.”

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 the supporting grounds, the applicants state that they operate a grocery store in Lot 1 (“Shop 1”) at Northside Plaza and have been trying for two years to have the body corporate give permission for them to position a shipping container at the back of their lot on common property. The container is required to relieve the inadequacy of their store to receive and store goods, particularly cold storage goods.

They state that a motion was validly passed at a body corporate general meeting held on 13 December 2001 on a vote of 1 vote in favour, 2 abstentions and no votes against the motion, for the applicants to position a container behind their shop. Photographs accompanying the application show a white shipping container in position in the driveway and apron area at the rear of the scheme building. Other photographs show the situation before the container, with pallets of goods being temporarily stored on the same area. The applicants say that the Sbrizzi family, who own four of the eight lots, requisitioned the Body Corporate Manager for a meeting be held on 31 January 2002 for owners to decide a motion to rescind the resolution for placement of the container.

This office has since been informed that the Sbrizzi’s withdrew the motion and the meeting did not proceed. Accordingly, the concern by the applicants that there may be a resolution rescinding the approval of the container will have dissolved, at least for the time being, with the failure of the proposed meeting to proceed.

If a motion to that effect had been passed then I would have made an interim order to prevent implementation of the resolution pending resolution of the dispute. However that is not now necessary and I have therefore dismissed the application for an interim order. The application, however, remains on foot until the matter is resolved whether by the parties themselves or by a final order. Submissions will be sought from owners regarding the dispute, however this does not prevent the owners resolving the matter in the meantime.

I think it is also appropriate, in the interests of all owners, for me to make some comments on the situation which may assist owners in resolving the matter.

Firstly, the applicants have relied on a resolution of the body corporate in obtaining (whether by leasing, purchasing or some other means) a container and having it placed on the common property with perhaps some associated wiring and plumbing. Assuming the resolution was a valid one (and I have no information otherwise), the applicants were entitled to rely on the resolution and in doing so have expended moneys and perhaps made certain arrangements. If the body corporate wishes to now rescind its previous resolution, then obviously the applicants will have legal rights against it in regard to the moneys expended and any arrangements entered into concerning the container. This is a matter on which both the body corporate and the applicants will need to seek their own private legal, I am merely mentioning it to show that passing a rescission resolution and requiring the container to be removed, is not a simple matter.

Secondly, the rights of an owner to use the common property in various ways is a difficult area of law and depends on the type of use, the frequency of use, the purpose, and the effect of its use on other occupiers. As the entity administering the common property, the body corporate may allow others use of the common property by renting, leasing or, for owners, granting a right to the exclusive use of an area of common property (see sections 130 to 140 of the Act and sections 123 to 125 of the Standard Module regulations). An exclusive use by-law gives an owner certainty in its use of the required area of common property, however, because it is an expropriation of the use of an area of common property from the other occupiers, then the legislation requires that it must be approved by the body corporate by a “resolution without dissent. It also requires the drawing up and registration of a new community management statement.

Neither the applicants nor the body corporate may wish such a permanent arrangement to be put in place. A short-term lease may give the applicants the security they need and also be satisfactory to the body corporate not wanting to have lose permanent control over the use of part of the common property (see section 111 of the Standard Module). Of course an exclusive use grant can be

The applicants should consider seeking a grant of exclusive use of the area the container stands on, by way of by-law comprised in a new community management statement. Section 123 of the Standard Module provides that such a by-law can be granted with conditions attaching, for example, that the benefiting owner pays a once-only or annual fee to the body corporate, or that the grant lapse on the owner’s sale of his lot, or whatever other condition the body corporate considers appropriate. However the time and cost associated with compiling and registering a new community management statement remains.

These are matters the applicants and other owners will need to consider. I repeat, there is nothing to prevent the applicants from taking this action before this application proceeds to a final order in (approximately) some 2 months time. The foregoing information should assist in reaching a decision.

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.2y