Phoenix Palms at Bronberg Court [2003] QBCCMCmr 397 (24 February 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0109-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24082
Name of Scheme:	Phoenix Palms at Bronberg Court
Address of Scheme:	1 Bronberg Court SOUTHPORT QLD 4215

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

Michael John O’Dowd & Diane Myles O'Dowd, the owners of lot 16



RA MeekI hereby order that the body corporate for Phoenix Palms shall not take any steps or action whatsoever with the view to or intention of rectifying the alleged interference with common property of the scheme by the owners of lot 16, Michael John O’Dowd and Diane Myles O’Dowd, in their constructing of a new pathway over parts of the common property in alleged breach of by-law 4.2.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0109-2003

"Phoenix Palms at Bronberg Court" CMS 24082

The applicants, Michael John O’Dowd & Diane Myles O'Dowd, the owners of lot 16, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The pathway as originally sited on common property – our area exclusive use to our lot backing onto rainforest and amenities as sited on the 16^th of March 2000, prior to our purchase, and to be maintained in its present position.

The Applicants have also sought the following interim order of an adjudicator, quote -

Request interim order for the subject pathway to remain in its present position until the dispute is resolved by the commissioner for the BCCM

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 applicants state that –

1. Location of pathway common property exclusive use area is in dispute;

2. Service contractors constructed another pathway unnecessarily as access is available through gate in bush fence;

3. Lot owner changed pathway back to its original position using the two (2) pavers layed (sic) by service contractors – plus four (4) supplied by owner;

4. Notice of contravention of body corporate by-law 4.2 is incorrect for the following reasons – I have not constructed a new pathway. I have only restored and widened original pathway on my exclusive use area.

The grounds set out by the applicants do not indicate with any clarity the terms of the dispute. I note the terms of the Notice of Continuing Contravention of a body corporate by-law (the notice) issued by the body corporate states that the applicants have –

... changed a common property pathway leading to your exclusive use garden area. The result being that in changing the pathway you have constructed a new pathway over parts of the common property. The result being that you have damaged the common property in order to construct the new pathway. This amounts to a breach of by-law 4.2 in that you have damaged Landscape.

In the letter serving on the applicants the notice, the body corporate solicitor has stated –

We are instructed by our client that it is in intention of the Body Corporate to rectify your interference with common property. This will require the removal of the works you have carried out on common property and return the unauthorised pathway to its previous state.

In the circumstances, whilst the applicants grounds are not absolutely clear to me at this time, it is clear that the body corporate has indicated an intention to rectify the alleged interference with common property. Given this, I consider that the interim order sought by the applicants, namely that the subject pathway remain in its present position until the dispute is resolved by the commissioner for the BCCM, is appropriate so as to maintain the status quo, until this dispute can be finally determined. I am further satisfied that an interim order to this effect shall not have a significant impact on any member of the body corporate, since I understand that the path in question is within the exclusive use area of the applicants.

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.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order. n