Laguna [2003] QBCCMCmr 563 (6 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0335-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13564
Name of Scheme:	Laguna
Address of Scheme:	62 High Street, BOONAH, QLD, 4310

TAKE NOTICE that pursuant to an application made under the abovementioned Act by: Lewis Stanley DENOVAN and Estelle Maud DENOVAN, the co-owners of Lot 1A; John Douglas FIHELLY, the owner of Lot 2A; and Selwyn Ian PFEFFER and Lorna Ethel PFEFFER, the co-owners of Lot 4A,

I hereby order that the application for an interim order that the body corporate carry out repairs to the common property, including: replacement of railings for external stairs and balconies; the repair of concrete on external balconies and balcony ceilings, and a special levy to fund these repairs, is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0335-2003

"Laguna" CTS 13564

The applicants: Lewis and Estelle Denovan of Lot 1A; John Fihelly of Lot 2A; and Selwyn and Lorna Pfeffer of Lot 4A, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That the body corporate proceed with urgent repairs.

(NOTE: The repairs referred to being those specified in Motions 2 to 10 considered and rejected at the extraordinary general meeting held on 23 May 2003)."

The applicant has also made application for an interim order in the same terms as the final order sought above.

JURISDICTION:

This is a dispute between three owners (the applicant owners of Lots 1A, 2A and 4A) and the remaining three owners (the respondents: Eddie Paradise’s Jewellers & Watchmakers Pty Limited the owner of Lot 3A; H & F Douglas Pty Ltd the owner of Lot 5; and Zitaburn Pty Ltd the owner of Lot 6), concerning the rejection by the respondent owners at the meeting held on 23 May 2003 ("the meeting") of proposed repairs to the common property, including: the replacement of railings for external stairs and balconies; the repair of concrete on external balconies and balcony ceilings, and a special levy to fund these repairs. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

Section 279 of the Act 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 284 of the Act).


APPLICATION:
Section 247 of the Act, the requirement to seek submissions from interested parties may be dispensed with and the application for an interim order dealt with directly by an adjudicator. That course is considered appropriate here, as the proposed works are not within the category of urgent matters under section 279, and the matter needs to be properly investigated before any order can be made.

The grounds to the application do, however, include a copy of a letter from a tenant to the Body Corporate Manager, Australian Unit Administration Pty Ltd, complaining that a person had been leaning on a balcony railing when it collapsed and fell onto rocks below injuring himself. Temporary repairs were subsequently carried out to the railings. I assume that any other balcony railings in a similar condition have been secured, albeit on a temporary basis, against any similar incident.

At least one of the respondent owners, Henry Douglas of Lot 5, is of the opinion that there may be better options for the body corporate than spending large sums of money on repairs, including: selling the land or demolishing and replacing the scheme building with replacement lot buildings.


DETERMINATION:
I am only concerned in this order with the application for the interim order to carry out the repairs.

I am satisfied that the matter is one that can only be resolved after all owners have made a submission in the matter, and the matter has been properly investigated, and no interim order is necessary. The application is really one for a final determination of the repair question with no prior intervention necessary. This does not prevent the body corporate, or owners as appropriate, from ensuring that the lots and common property are reasonably secured to prevent any accident occurring that could have been avoided with normal maintenance measures.

The matter will now be investigated in accordance with the usual processes undertaken by this office, and a final order to the application will be made in due course.