Campbell Marque [2003] QBCCMCmr 75 (19 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0465-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24172
Name of Scheme:	Campbell Marque
Address of Scheme:	21 Campbell Street TOOWONG QLD 4066

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Kenneth Alan Mayes & Carol Susan Mayes, the owners of lots 1 and 20

I hereby order that the application by Kenneth Alan Mayes & Carol Susan Mayes, the owners of lots 1 and 20, for an interim order that Khai-Wei Choong and other owners be prevented from breaking by-laws and dramatically increasing the public liability risk insurance premium, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0465-2003

"Campbell Marque" CTS 24172

The applicants, Kenneth Alan Mayes & Carol Susan Mayes, the owners of lots 1 and 20, have sought the following orders under the Body Corporate and Community Management Act 1997 (the Act), quote –

Enforce the Body Corporate Act by-laws, Act 167 Nuisances, Act 182 continuing contraventions notice, Act 183 future contravention notice, Act section 168 schedule 4 by-laws 1. noise, 2. vehicles, 3. obstruction, 4. damage to lawns etc, 5. damage to common property, 6. behaviour of invitees, 7. leaving of rubbish etc on common property, 8. Appearance of the lot included CMS/CTS 24172 by-laws – diminish public liability risk.

The applicants have also sought interim orders, quote –

Ditto item 5. Prevent Khai-Wei Choong and other owners from breaking by-laws and dramatically increasing my public liability risk insurance premium. by removing hanging pots plants – frames – quantity of pot plants on balconies – hanging systems – pot plants on outside balconys – grass on paths 2 m high – rubbish on common property – clothes lines on balcony – clothes over balcony rails – excessive noise.

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.

In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset 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 which 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 objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be refused. It is a matter for an adjudicator to determine in respect of each application.

There is no aspect of urgency associated with this application that requires that an interim order be made. Further, the matter of compliance with by-laws is not a matter which can be dealt with by way of interim order. It is a matter which requires full investigation before the making of any order. Moreover, the nature of the matters raised are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submissions from other parties to the dispute, before any order can be made.

I conclude that the applicants have not sought interim relief, but rather that a final resolution of the dispute be made by way of an interim order. In the circumstances, I am not satisfied that the applicants have established that either the nature or urgency of the circumstances warrant the making of any interim order. In their grounds, the applicants allege that "breaking of by-laws (is) dramatically increasing my public liability risk insurance premium". There is no evidence tended or provided to this effect; namely that increases in public liability insurance for the scheme is directly attributable to the alleged breach of by-laws. In the absence of evidence to substantiate this allegation, I suggest that any increase in public liability insurance premiums is more likely attributable to several other factors which have been the subject of much media and other discussion in the community in recent years. These factors have nothing whatsoever to do with individual events occurring within a single community title scheme.

In the circumstances, this application for an interim order is dismissed.

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.