Spindrift Apartments [2002] QBCCMCmr 77 (14 February 2002)

RA MeekREFERENCE: 0090-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9838
Name of Scheme:	Spindrift Apartments
Address of Scheme:	37 Albatross Avenue MERMAID BEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Spindrift Apartments

RA MeekI hereby order that the interim orders sought by the Body Corporate for Spindrift Apartments, that

1.	An interim order, authorising the body corporate to fit dead lock barrel bolts on all sliding doors of lots 5 to 28 (inclusive) which access balconies.
2.	An interim order, that persons authorised by the body corporate have a power of entry to lots 5 to 28 (inclusive) at all reasonable times and to remain on the said lots for such reasonable time in order to fit the dead lock barrel bolts in compliance with order 1.
3.	An interim order, that persons authorised by the body corporate have a power of entry of lots 5 to 28 (inclusive) at all reasonable times and to remain on the said lots for such reasonable times and as many occasions as necessary in order to repair the balcony balustrades.
4.	An interim order, that any person must not:
a)	Remove a dead lock barrel from a sliding door once it was being fitted in compliance with order 1; or
b)	Otherwise access a balcony,

except person authorised by the body corporate committee to repair the balcony balustrades.

are dismissed.

I further order that the Body Corporate of Spindrift Apartments shall cause a copy of this order and statement of reasons shall be included with the notice inviting submissions regarding this application which is to be sent to all owners. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0090-2002

“Spindrift Apartments” CMS 9838

The applicant, the Body Corporate for Spindrift Apartments, has sought the following interim orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

1.	An interim order, authorising the body corporate to fit dead lock barrel bolts on all sliding doors of lots 5 to 28 (inclusive) which access balconies.
2.	An interim order, that persons authorised by the body corporate have a power of entry to lots 5 to 28 (inclusive) at all reasonable times and to remain on the said lots for such reasonable time in order to fit the dead lock barrel bolts in compliance with order 1.
3.	An interim order, that persons authorised by the body corporate have a power of entry of lots 5 to 28 (inclusive) at all reasonable times and to remain on the said lots for such reasonable times and as many occasions as necessary in order to repair the balcony balustrades.
4.	An interim order, that any person must not:
c)	Remove a dead lock barrel from a sliding door once it was being fitted in compliance with order 1; or
d)	Otherwise access a balcony,

except person authorised by the body corporate committee to repair the balcony balustrades.

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)).

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 its grounds, the body corporate states that it recently instructed Solutions in Engineering Pty Ltd (SIE) to report on the balcony balustrades of lots in the scheme. SIE subsequently reported that the balcony balustrades “have not been constructed and installed with Australian Standard 1657”, that “the balcony balustrades are unsafe”, and that “access to all balconies (other than the ground floor level) should be denied by means of a dead lock bold barrel bolt on all sliding doors”.

The body corporate has informed all owners, excepting those on the ground floor (lots 1 to 4?) who do not have balconies presumably, both of the SIE report, and of the body corporate’s intention to make this application.

I note the body corporate accepts its obligation under section 109 of the regulation to repair the balustrades on the boundaries of lots. The body corporate then states –

There is an implied obligation on the applicant by reason of its obligation to repair under section 109 Accommodation Module of Regulations, that it must also take such reasonable preventative action during repair to such area to ensure the safety of the occupiers in the scheme.

By reason of the immediate danger to occupiers of lots 5 – 28 (inclusive) in Scheme it is reasonable for there own safety and well being that while the balcony balustrades are being repair they be denied access to these balconies.

The SIE report provides relevantly as follows –

... regarding the above building’s handrails we advise that there is a general context that any works needs to be placed within. ...

At present all balcony handrails from and including Level 1 to Level 6 will not satisfy the required Australian Standards. ...

The Australian Standards provide for the minimum standard to which the rails are installed and if these are not met or exceeded, then the railings cannot be deemed to be safe. It is our opinion the balcony balustrades on each balcony do not meet the Australian Standards and are not safe. Access to balconies (other than ground floor level) should be denied be means of a dead lock barrel bolt on all sliding doors.

The level of safety is further impacted by the design and condition of the balcony railing the worst being apartments 13, 19 and 25 as described in our summary of defects letter. The major defects in the above units will be attended to on Thursday 31^st January 2002 ...

The balcony railings are currently not safe in every apartment and there is a likelihood that they were never compliant as the supplier of the original railings has advised that they did not comply with standards of the day.

I have not sought submissions from the respondents, the owners of lots 5 to 28, regarding the interim orders which have been sought. Given the number of owners involved (all but 4) this would have been a difficult and time consuming exercise. I do intend however to seek submissions from all owners before proceeding to determine the requested final orders sought.

My intention is to dismiss the application for interim orders. I considered that the interim orders are unnecessary and distract the body corporate from its real obligation, namely to repair the balustrade railings.

I can understand why SIE has made the recommendations which it has. In an increasingly litigious environment, to not recommend the deadlocks might be regarded as a negligent omission on its part. Similarly, I can appreciate that a body corporate is concerned to avoid any allegation of negligence in not being seen to comply with the recommendation of a report, particularly if someone is injured in consequence of an acknowledged defect in the balcony balustrades.

However, there are a few practical considerations that in my view should also be considered. According to the SIE report, the balustrades have been unsafe, in consequence of failure to comply with relevant Australian Standards, since the building was built. Records confirm that this was in 1982. The balustrades have been in place for almost 20 years without incident presumably.

Secondly, the lack of safety alleged is a failure to comply with relevant Australian Standards. It is not that the state of repair is so bad that the balustrades are about to collapse. There is no statement in the SIE report which suggests to me that lives are immediately in danger, and particularly so if all occupiers have knowledge of the safety defect, and use prudence and caution when accessing the balconies.

Thirdly, the cost, inconvenience, and time spent installing the deadlocks could, in my view, be more positively invested in proceeding, as quickly as possible, with attendance to the real issue; namely the repair of the balustrades. Surely this is the real issue.

Fourthly, whilst the deadlocks are recommended by the SIE report, I consider there are other less costly, less inconvenient, and less time consuming ways to address the issue of safety. These include that the body corporate inform all owners and occupiers of the SIE report, of the possible danger from the balustrades, and recommend significant caution. I note that the body corporate has notified all owners. I suggest that it should also inform all occupiers of lots who are not owners, and who might therefore not be aware of the safety concern. If it is necessary to personally door knock lots, then so be it. Alternatively, a clear and concise notice might be delivered to each lot. It is really for those on site to know how best to bring the relevant information to the attention of all occupiers.

I intend to dismiss this application for interim order. Further, I intend to order that a copy of this order be provided to all owners as part of the notice inviting submission to the final orders sought. Given the nature of the final orders sought, and my comments herein, it may be that no final orders are in fact made, but I will considered this aspect in time.

Finally, whilst I have not ordered in terms sought by the body corporate, I conclude that it is open for any owner to instruct the body corporate to deadlock their lot, at body corporate expense, to prevent access to the lot’s balcony. As well, I further suggest that the emphasis of the body corporate should be on keeping all owners and occupiers informed and on concluding necessary repairs to all balustrade railing as soon as possible.

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. n