Barklya [2003] QBCCMCmr 307; [2003] [2003] QBCCMCmr 225 (17 November 2003)

REFERENCE: 0355-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9569
Name of Scheme:	The Cosmopolitan - Surfers Paradise
Address of Scheme:	3142 Gold Coast Highway - Cnr Beach Road SURFERS PARADISE QLD 4217

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

Susan Hosking, the occupier of lots 3 and 4

I hereby order that the applicant Susan Hosking shall be permitted to display goods and any Council approved signage outside her premises until a final order is made in respect of this application.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0355-2003

“The Cosmopolitan - Surfers Paradise” CTS 9569

1. Orders sought

The Applicant, the occupier of lots 3 and 4, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

•	That the body corporate for The Cosmopolitan Surfers Paradise permit and approve without further nuisance the reasonable display of goods within the defined area as normal retail practice within Surfers Paradise.
•	That the body corporate for The Cosmopolitan Surfers Paradise acknowledge special circumstances for the display of goods due to the wind affected location.

The Applicant has also sought the following interim order of an adjudicator, quote-

•	To set aside withdraw and cancel the resolution and the subsequent letter of the body corporate for The Cosmopolitan Surfers Paradise taken at the meeting on 1st April 2003 in relation to the display of goods at the front of shops 3 and 4.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or
(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or
(c) a claimed or anticipated contractual matter about-
(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

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.

2. Scheme details

“The Cosmopolitan – Surfers Paradise” community titles scheme was originally created pursuant to a building units plan of subdivision (now known as a building format plan) registered on 29 April 1983. The scheme consists of 78 lots, and common property.

A new community management statement for “The Cosmopolitan – Surfers Paradise” was recorded on 13 February 2003, and indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (“the Accommodation Module”) applies to the scheme.

3. Application details

This dispute resolution application was made on 3 June 2003. On 5 June 2003 the body corporate committee was invited to respond to the application. A submission, prepared by the secretary, was received on 13 June 2003. On the same date, the applicant requested that she be permitted to view, and respond, to the submission. A response was received from the applicant on 23 June 2003.

The Commissioner has referred the application to me pursuant to section 247 of the Act, to consider whether an interim order should be made.

4. Matters in dispute

The applicant entered into a lease of the subject premises and commenced trading in May 2002. Prior to entering into the lease the applicant states that the agent informed her that there would be no problem in having stock and an “A” board display outside the entrance to the shop. The applicant further states that it is imperative that she be allowed to display stock at the front of her shop as the windy conditions require her to keep her back door closed, and without stock on display potential customers will not realise that the shop is open for business. The applicant further states that she supplied the body corporate with details of her insurance cover in relation to goods being displayed on the common property, but the body corporate committee has given her no reasons for refusing to allow her to continue to display the goods. The applicant concludes by stating that she is the only trader in the building who trades reliably 7 nights a week, and without her goods on display, her business will fail behind its seemingly closed doors.

In its submission, the secretary stated that the body corporate committee had refused the applicant’s request to display goods on common property, but no reasons for the refusal were given.

5. Interim orders

At this time, I am primarily 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 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 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.

6. Determination

I am concerned that the body corporate committee did not provide the applicant with reasons for its refusal to allow her to display goods outside her shop. On 15 November 2002, the secretary wrote to the applicant, and stated that the committee would consider requests to display products or signs on common property subject to certain information being provided. The applicant provided the information, which included a memo from her insurer, confirming the existence of business insurance cover of $2 million, including Public and Products Liability, which included any claims arising from the baskets kept on the footpaths. I also note from the photographs provided by the applicant that other operators in the building have signs displayed outside their premises. The minutes of the committee meeting held on 1 April 2003 simply record that the applicant’s correspondence was tabled and the contents noted and that her request was not approved. The issue is one of significance for the applicant, given that the viability of her business may be at stake.

It appears that the applicant has been displaying goods outside her premises since she entered into her lease over 12 months ago. In view of the fact that she has public liability insurance cover for the display, I intend to allow her to continue to display the goods until I make a final order to this application. In the meantime, I expect that the committee will, when invited to make further submissions, provide detailed reasons for its refusal of the applicant’s request. In the event that the committee fails to satisfy me that its refusal was reasonable, I shall consider allowing the applicant to continue to display her goods within the defined areas, but on the condition that she increases her public liability insurance to a minimum of $10 million, which is the minimum level required for the body corporate in its public liability insurance.