One Park Road [2003] QBCCMCmr 558 (5 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0361-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2114
Name of Scheme:	One Park Road
Address of Scheme:	1 Park Road MILTON QLD 4064

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

Maxwell Dunstan, a Co-owner of Lot 9 and a member of the Body Corporate Committee:

I hereby order that pending a final determination of this application, the Body Corporate shall not allow the scheme land to be used for paid parking by persons attending Suncorp Stadium for sporting or other events.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0361-2003

"One Park Road" CTS 2114

1.	Orders sought

The Applicant, a Co-owner of Lot 9, and a member of the Body Corporate Committee, has sought the following adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"That the decision made by motion voted on outside of a committee meeting dated 30 May 2003 to allow the current car park operator to rent out the Body Corporate asset of the car park on Suncorp Stadium game days to the exclusion of others and for profit is a restricted issue pursuant to section 15(c) of the BCCM Commercial Module and is therefore not a decision of the Body Corporate."

The Applicant has also sought the following interim adjudicator’s order:

"To put on hold in order to:

(1)	Mitigate the potential for personal injury to Suncorp Stadium attendees and any consequential legal claims against the Body Corporate or lot holders.
(2)	Allow lot holders and their tenants and business customers access to parking on stadium days.

The authority of the Body Corporate to allow an operator to rent out the Body Corporate car park to the exclusion of others on Suncorp Stadium days until a determination is made on this application."

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 "One Park Road" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 4 March 1994. The scheme consists of 39 lots and common property. A new community management statement was recorded for "One Park Road" on 12 January 2000, and indicates that the Body Corporate and Community Management (Commercial Module) Regulation 1997 ("the Commercial Module") applies to the scheme.

3.	Application details

This dispute resolution application was made on 3 June 2003. This is one of two dispute resolution applications made by the Applicant concerning a proposal to allow persons attending events at nearby Suncorp Stadium to park on the scheme land for a fee. The Applicant did not request an interim order in relation to the other application (reference 0266-2003), and it is currently pending a final determination.

On 4 June 2003, and in accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management ("the Commissioner") decided that the nature and urgency of the circumstances of the application warranted the matter being considered by an adjudicator for an interim order. The Commissioner has referred the application to me for consideration for an interim order notwithstanding that affected parties have not been given notice of the application, or afforded an opportunity to make a submission about the application (section 247(3)).

4.	Matters in dispute

This dispute resolution application concerns the use of a car parking area included as part of the scheme land of the "One Park Road" community titles scheme. The building units plan for "One Park Road" shows that Level A of the scheme includes a large number of car parking spaces. From the material before me, I understand that Mr Nicolas O’Loan (trading as "Park on Park") has for some time managed the car parking area. However, the details of this arrangement are not clear from the material before me.

I understand from the material before me that on or around 30 May 2003, the Committee for the Body Corporate resolved to allow Park on Park to offer car parking to persons attending sporting events at nearby Suncorp Stadium for a flat fee of $10 per vehicle. The conditions of this authorisation are outlined in a "Notice of Motion to be voted on outside committee meeting" and a letter to Park on Park from the Body Corporate Manager dated 30 May 2003. I note that the net income from the venture is to be divided equally between the Body Corporate and Park on Park.

The Applicant objects to this authorisation on a number of grounds. In my view, the Applicants key objections are that:

• The Committee is not authorised to make a decision of this nature pursuant to section 15 of the Commercial Module,

• Park on Park has previously operated without adequate insurance cover, and the Body Corporate could be left open to liability for damage suffered by users of the car park,

• The Brisbane City Council has advised that the proposed arrangement is unlawful, and

• In authorising and participating in the proposed venture, the Body Corporate is carrying on a business contrary to section 96(1) of the Act.

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.

In this case, I consider that the Applicant has raised a number of serious issues concerning the parking venture, which could potentially impact on the owners and occupiers of lots included in the "One Park Road" community titles scheme. I am also aware that a major event is scheduled for Suncorp Stadium for 11 June 2003. As a result, I consider that the nature and urgency of the circumstances of this application make it suitable for consideration for an interim order.

6.	Determination

After reviewing the material, I am concerned that the car-parking proposal may breach the legislation in two key respects. Firstly, at a preliminary examination, it seems to me that the venture proposed in the 30 May 2003 letter to Park on Park from the Body Corporate Manager is arguably in the nature of a business. I note that section 96(1) of the Act specifically prohibits bodies corporate from carrying on a business.

Further, it seems to me that it is arguable that the nature of the venture proposed by the Committee and Park on Park makes it a restricted issue for the Committee in terms of section 15(a) of the Commercial Module. In my view, the car-parking proposal could significantly affect rights and privileges of owners in terms of their own ability, and the ability of their customers, to park on the scheme land. Therefore, and again on the basis of a preliminary examination, it is arguable that the proposal could only be properly authorised by the Body Corporate at a general meeting.

I am also concerned about compliance with local authority regulations, and the impact of the car-parking proposal on the Body Corporate’s insurance.

Due to time constraints, it is not possible for me to fully investigate these matters before my consideration of the application for an interim order. As a result, I do not intend to make a final determination of these matters until they can be investigated, including by allowing affected persons an opportunity to present their views on the key issues. However, I do consider that there is sufficient merit in the Applicant’s concerns to warrant an interim order. Therefore, pending a final determination of the application, I have decided to issue an interim order restricting the Body Corporate from allowing the scheme land to be used for paid parking by people attending events at Suncorp Stadium.

7.	Conclusion

This application will now be administered in accordance with the Act and the normal processes of this Office. I anticipate that the Commissioner will invite persons affected by the application to make a written submission about the application before the matter is finally determined.

All parties should note the provisions of section 279(2) of the Act, which provides that -

"(2) An interim order--

(a) has effect for a period (not longer than 1 year) stated in the order;

and

(b) may be extended, varied, 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--

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the

application a written notice under section 241 rejecting the

application; or

(iii) a final order is made by an adjudicator to whom the

application is referred."

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.2y