Hermitage Gardens -The Grange [2003] QBCCMCmr 27 (17 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0483-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26995
Name of Scheme:	Hermitage Gardens -The Grange
Address of Scheme:	120 Uxbridge Street, Grange

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Hermitage Gardens - The Grange

I hereby order that the application by the body corporate for Hermitage Gardens – The Grange for an interim order that the bin storage area remain in the designated position until the dispute resolution decision is handed down, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0483-2003

"Hermitage Gardens -The Grange" CTS 26995

The applicant, the body corporate for Hermitage Gardens – The Grange has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the designated bin collection area continue as the storage location for 8 lot owners’ wheelie bins (lots 102 – 109) and 4 communal Brisbane City Council recycle bins. That lot 91 be directed to pay body corporate contributions as having a dispute with a body corporate committee decision does not give right to the non-payment of levy contributions.

The applicant body corporate has also sought an interim order, quote –

That the bin storage area remain in the designated position until the dispute resolution decision is handed down.

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

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 279(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 dismissed. It is a matter for an adjudicator to determine in respect of each application.

There is no aspect of urgency associated with this application that requires that an interim order be made. There is nothing in the grounds to suggest that there is an imminent danger of the bin area being moved or any other factor requiring that on the grounds of urgency, an interim order needs to be made. Moreover, the nature of the matters raised are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submissions from other parties to the dispute, before any order can be made. Accordingly, this application for an interim order is dismissed.

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.