Cashelmara [2003] QBCCMCmr 327 (14 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0799-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10590
Name of Scheme:	Cashelmara
Address of Scheme:	170 The Esplanade, BURLIEGH HEADS QLD 4220

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

RA MeekI hereby order that the application by the Body Corporate for Cashelmara, for an interim order that
the owner of lot 22 (unit 22) not be permitted to use the balcony screens until after the matter has been decided by the body corporate at the forthcoming AGM, is dismissed.

RA MeekI further order that the application by the Body Corporate for Cashelmara, for an final order that he owner of lot 22 (unit 22) remove the balcony screens if a motion is not submitted for the inclusion on the agenda at the forthcoming AGM, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0799-2002

"Cashelmara" CMS 10590

The applicant, the Body Corporate for Cashelmara, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The owner of lot 22 (unit 22) remove the balcony screens if a motion is not submitted for the inclusion on the agenda at the forthcoming AGM.

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

The owner of lot 22 (unit 22) not be permitted to use the balcony screens until after the matter has been decided by the body corporate at the forthcoming AGM.

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 the supporting grounds, the body corporate states that the –

1. The owner of lot 22 installed the balcony screens without approval;

2. The owner of lot 22 has submitted an application to install balcony screens;

3. The committee has not approved the application.

The owner of lot 22, John Vernon Hembrow, has responded by way of submission. He states –

1. The order sought under motion 10 is now irrelevant and should be struck out as a motion has been submitted as acknowledged by the applicant;

2. That the order under item 11 also should be struck out, as it is detrimental to the success of the motion put to satisfy item 10. From discussion it seems likely that the only relevant objection to the approval of the shutters is the external visual appearance. If the shutters are not exposed for viewing by the owners prior to the AGM they will not be able to fairly access any arguable detrimental impact.

The interim order sought is that the owner of lot 22 not be permitted to use the balcony screens until after the matter has been decided by the body corporate at the AGM to be held on 24 March 2002. The owner of lot 22 has argued against such an order saying that the use of the screens is the only way other owners will be able to make an assessment of their visual impact prior to the meeting.

The body corporate has not alleged any particular detriment to it or other owners in the use of the scheme prior to the AGM. It appears that it principal objection is that the owner of lot 22 did not seek authorisation. In the circumstances, I consider there is no good reason why I should make the interim order as sought by the committee. In my view, the use of the screens before the meeting will not affect the outcome of the resolution regarding the screens. Nor will it in any way affect the fact that if the motion submitted is not approved, then the screens will need to be removed. I therefore decline to make an interim order as sought.

I further consider that the final order sought is redundant. A motion regarding the screens has been submitted to the body corporate for consideration at the forthcoming AGM. Consequently no final order to this effect will be made. In the circumstances I intend to dismiss this application in its entirety.

If, when the meeting is held, the motion regarding the screens is not carried by the required vote, then the owner of lot 22 will have no option but to remove the screens. If the owner refuses to so remove the screens, it is open to the body corporate to make a further application to this office following the meeting for an order (not including an interim order) for removal of the screens by the owner of lot 22.