Ti-Tree [2003] QBCCMCmr 26 (17 July 2003)

NOTICE OF AN ORDER OF A SPECIALIST ADJUDICATOR ORDER 0352-2003 – TI-TREE CTS 848 BODY CORPORATE AND COMMUNITY MANAGEMENT ACT INTERIM ORDER OF A SPECIALIST ADJUDICATOR
Number of Scheme:	9848
Name of Scheme:	Ti-Tree
Address of Scheme:	C/- Body Corporate Services Pty Ltd PO Box 5134 Cairns Mail Centre Qld 4871

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jean-Frances Schaedler, Keithea Schaedler-Hildebrand and Ellimount Pty Ltd,

I hereby order that –

1. The Body Corporate is enjoined from giving effect to any of motions 2 to 7 appearing on the agenda for extraordinary general meeting of the Body Corporate to be held at 9 am on Tuesday 10 June 2003 until further order.

2. The application is adjourned for consideration of the application for interim orders for 21 days to 27 June 2003.

3. The Body Corporate must by 13 June 2003, notify each proprietor in writing by letter addressed to the address of proprietors shown on the roll of this dispute and inform them of their entitlement to make a submission about the dispute by 20 June 2003. Such notice must be accompanied by a copy of the application and a copy of this Order and must advise proprietors that they are entitled to make submissions in writing to the Commissioner for the Body Corporate and Community Management by sending them to the Commissioner’s office by post to GPO Box 1401 Brisbane QLD 4001 or by facsimile to 07 3227 8023 or by email to bccm@dnr.qld.gov.au.

4. That any submissions by the Body Corporate about the interim orders must be made to the Commissioner for Body Corporate and Community Management by 20 June 2003 and that any responses by the applicants thereto be made to the Commissioner for Boy Corporate and Community Management by 26 June 2003.

5. I will then hear any oral argument by any party and consider any other interim orders or changes to these interim orders at 9 am on 27 June 2003 and will determine at that time the costs of the application for interim orders.

6. The costs of the Adjudicator for today are reserved.

DATED this day of 2003

....................................................
Douglas Savage
Specialist Adjudicator
JNM060603.06

I order:

1. That the respondent’s submissions in response to the application be lodged with the Commissioner for Body Corporate and Community Management on or before 4 pm 1 August 2003.

2. The applicant’s submissions in reply to the respondent’s submissions be lodged with Commissioner for Body Corporate and Community Management on or before 4 pm 15 August 2003.

3. That the body corporate:

(a) notify each lot owner in writing at the address shown for that lot owner in the body corporate roll of the making of this order;
(b) provide each lot owner with a copy of this order; and
(c) advise each lot owner that any lot owner may inspect submissions already filed and that each lot owner who wishes to do so (other than the applicant whose submissions are the subject of directions above) may lodge with the Commissioner for Body Corporate and Community Management on or before 4 pm 22 August 2003 any further submissions which any lot owner may wish to make concerning the above application.

IN THE MATTER of application by Jean-Francis Schaedler and Keithea Schaedler-Hildebrand and Ellimount Pty Ltd ACN 068 474 144

Applicant: JEAN-FRANCIS SCHAEDLER AND KEITHEA
SCHAEDLER-HILDEBRAND AND ELLIMOUNT PTY LTD
ACN 068 474 144

"Ti-Tree" is the body corporate in respect of community title scheme 848. That scheme is a 49 lot scheme located at Port Douglas in far north Queensland.

The present applicants are the proprietors of lots 48 and 49 in the scheme. Those lots together form a single building separate from other buildings within the scheme.

Registered by-law I of the by-laws for the scheme apprehend that the proprietoroflot49

(or an associate of those persons) will conduct a management and letting business from

1ot49. At present one or more of the applicants conducts a letting business for proprietors of units in the scheme from that location.

Recently the body corporate met in extraordinary general meeting. It resolved to authorise the making of a letting agreement with a person other than the proprietor of lot 49. The

same meeting resolved to take action to remove signage in respect of the applicant’s business from the common property. A further resolution aimed at preventing the applicants use of an area now occupied by them adjacent to lots 48 and 49 for car parking purposes incidental to the use of those units was also passed.

The apprehension that resolutions of such a nature would be carried by the general meeting led to the applicants making the present application. The application was referred to me as a specialist adjudicator. The application sought interim relief in the form inter alia of orders restraining the body corporate from acting in accordance with the resolutions. That application was also referred to me as specialist adjudicator.

On 7 June 2003 I made interim orders restraining the body corporate until 27 June 2003 from giving effect to resolutions in the form proposed if passed by the extraordinary general meeting of the body corporate to be held on 10 June 2003. Resolutions as proposed were passed by the body corporate on 10 June 2003.

I made various directions on 7 June 2003 with a view to determining whether the interim orders then made should be extended to final determination of the dispute. Because the parties had been negotiating to resolve an appropriate interlocutory regime those directions were not complied with by 27 June 2003. When I heard the parties further on 27 June 2003 an affidavit to be relied upon by the body corporate had been recently provided to the applicants and to myself The applicants had had no opportunity to respond to that material or to consider what submissions they ought to make given the further material received. Fort hat purpose I extended the interim orders until 4pm on 7 July and made directions that now allow me to determine the appropriate interim orders which will extend until the dispute is finally determined.

The material before me (which consists of the application and the affidavits of solicitors for the body corporate and the applicants) plainly establish that there is a serious question to be determined as to the applicant’s claimed entitlements as set out in the application.

It is important to resolve this dispute as soon as possible. As I have previously indicated to the parties, the dispute can be resolved within say the next 6 weeks. That is an important factor to consider in deciding the application for interim orders.

If the applicants are correct in the contentions in the application they would be entitled prima fade to damages (perhaps in a substantial sum) if the resolutions of the body corporate described above were put into effect. Any such orders for monetary compensation and for the costs of determining those issues would be met by the body corporate from presumably money specifically raised for that purpose by levies on proprietors in the body corporate.

Similarly, if at least the resolution authorising the making of a management and letting agreement with a third party was entered into and it was subsequently determined that the body corporate did not have power to make such an agreement, the body corporate may be exposed at the suit of the third party to substantial claims for damages, which again would have to be met by special levy imposed by the body corporate on one or more of the proprietors within the Community Title Scheme.

It seems to me, in those circumstances, almost self evident that the status quo restraining the body corporate from giving effect to the resolutions should be maintained by a continuation of the present interim orders. Those orders restrain the body corporate giving effect to resolutions on motions 2 to 8 made at an extraordinary general meeting of the body corporate held on 10 June 2003 until final determination of this dispute. No party submitted to me that such an order would not be an appropriate order given the circumstances described above.

The body corporate, however, submitted that no such order should be made because the applicants were not in a position to give a good undertaking as to damages. It was submitted for the body corporate (and I accept) that if an order in similar terms to the one sought by the applicants here was sought in a Court the applicants would be required (save in exceptional circumstances not here relevant) to give an undertaking as to damages. In Queensland Courts with power to make injunctions require an undertaking as to damages by rules of Court. I accept that those rules of the Court followed the practice in England for many centuries past.

A specialist adjudicator, however, is not a Court. The Body Corporate and Community Management Act 1997 does not provide a mechanism for the enforcement of such an undertaking. A dispute about an undertaking as to damages would likely not be a dispute (or would not inevitably be a dispute) within the jurisdiction of the specialist adjudicator who heard and determined the initiating application, or indeed perhaps, within the jurisdiction of any adjudicator (whether specialist or not) pursuant to the provisions of the Body Corporate and Community Management Act 1997. It is in fact, if a matter of practice to require an undertaking, not a practice maintained either by adjudicators under the Act or by tribunals or referees under the previous Building. Units and Group Titles Act 1980.

I do not consider that I have the power, or if I had the power, that I should require an undertaking as to damages in the form comprehended by the Uniform Civil Procedure Rules - that being the main submission for the body corporate - for the above reasons.

The submissions made to me by the body corporate, however, highlights one difficulty with the making of interim orders. Any interim order designed to maintain a status quo has the potential to prejudice the party against whom the status quo is maintained where it is later determined that the status quo should not have been maintained. One can quite easily think of circumstances in which substantial damage might be done to a respondent by interim orders maintaining a status quo later revealed to be patently against the respondent’s legal entitlements.

If I considered here that it was possible to describe the applicant’s case as a particularly weak or nearly unarguable one (without hearing detailed argument), and substantial damage to the body corporate was very likely to occur by maintaining a status quo likely not to be upheld at a final hearing I would be inclined not to make the interim orders or to impose conditions upon the making of same. That is not this case.

(a) little damage is likely to occur in the short period until resolution of the dispute;

(b) if the body corporate is right it will probably have substantial rights against the applicant (for example) for trespass which are independent (but as good as) any rights under an undertaking;

(c) not maintaining the status quo is likely to impose a possible further costly and unnecessary burden on proprietors and involve the interests of a third party.

I therefore order the interim orders previously made be extended until determination of the dispute.

(a) Notify each lot owner In writing at the address shown for that lot owner in the Body Corporate roll (or, if an owner has made a submission to the Commissioner For Body Corporate and Community Management which submission shows a different address, then at tile address shown in the submission) of the making of this order;

(i) Telephoning Mr Savage’s secretary on 07 3221 3463 by 4:00pm Thursday, 28 August 2003 and notifying her of their intention to do so; and

(ii) Telephoning Mr Savage on 07 3221 3463 on Friday, 29 August 2003 at 8:30 am to make any such submissions.

2. That Keithea Schaedler-Ilildebrapid, Jean-Francis Schaedler and Elilmount Pty Ltd ("Schaedlers") submit to the Commissioner For Body Corporate and Community Management by 4:00pm on Thursday 4 September 2003, any evidentiary material they intend to rely upon with respect to any factual issues in dispute in the applications including without limitation, issues with respect to the signage on common property, In Lots 48 or 48 or elsewhere on scheme land, the approval of the lattice work and the granting of exclusive use to the car spaces and patios around Lots 48 and 49.

3. That the Body Corporate submit to the Commissioner for Body Corporate and Community Management by 4:00pm on 11 September 2003, any evidentiary material that it wishes to rely upon in response to the material produced by the Schaedlers or otherwise in relation to Factual issues in dispute.

4. That a Further directions hearing take place at my office during the week beginning 15 September 2003 to determine further directions for the hearing and taking of any evidence and with respect to the final determination of the applications,

5. That when submitting any material under paragraph 2 of this Order, the Schaedlers also submit proposed orders that they consider I should make in the event that there is a finding in the Schaedlers’ favour,

6. That when submitting any material under paragraph 3 of this Order, the Body Corporate also submit proposed orders that It considers I should make in the event that there Is a finding in the Body Corporate’s favour.
7. That costs or the Adjudicator for today be reserved.

DATED this day of August 2003.

..............................................................................
DougIas Savage

A SPECIALIST ADJUDICATOR

APPLICATIONS 0352-2003 AND 0450-2003 - TI TREE CTS 848
BODY CORPORATE AND COMMUNITY MANAGEMENT ACT

ORDER OF SPECIALIST ADJUDICATOR

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ti-Tree [2003] QBCCMCmr 26 (17 July 2003)