Grosvenor Apartments - Brisbane [2003] QBCCMCmr 8 (4 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0441-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24652
Name of Scheme:	Grosvenor Apartments - Brisbane
Address of Scheme:	PO Box 7972 BUNDALL QLD 9726

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Grosvenor Apartments - Brisbane, CTS 24652

I hereby order that the application for an order that the owners of lot 53, Grosvenor Apartments – Brisbane CTS 24652 be restrained and an injunction hereby granted restraining the owners from installing, causing to be installed or placing upon any part of the lot hard flooring for a period to be ordered by the adjudicator or until further order in accordance with section 279(2) of the Body Corporate and Community Management Act 1997 (Qld), is dismissed. I further order that the owners of lot 53 shall, within 14 days of the date of this order and at their cost, have the Floor Impact Isolation Class of the installed flooring determined by a field test conducted by an accredited acoustic consultant approved by the committee and provide a copy of the consultant’s report to the committee and to the Office of the Commissioner for Body Corporate and Community Management.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0441-2003

"Grosvenor Apartments - Brisbane" CTS 24652

The applicant, the body corporate for Grosvenor Apartments – Brisbane, has sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1.	That the owners of lot 53, Grosvenor Apartments – Brisbane CTS 24652 be restrained and an injunction hereby granted restraining the owners from installing, causing to be installed or placing upon any part of the lot hard flooring for a period to be ordered by the adjudicator or until further order in accordance with section 279(2) of the Body Corporate and Community Management Act 1997 (Qld).
2.	That the owners of lot 53, Grosvenor Apartments – Brisbane CTS 24652 remove the works from the lot in accordance with by-law 22.5(e) of the scheme in the event that the owners install, cause to be installed or place in or upon any part of the lot hard flooring in contravention of the scheme (sic).

The applicant also sought final orders in similar terms.

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.

In the supporting grounds, the applicant referred to the relevant by-law, provided a chronology of events, and stated that it had been informed that notwithstanding the body corporate committee having refused, on or about 29 January 2003, the request by the owners of lot 53 to install hard flooring in their lot, such flooring was scheduled to be installed on 27 June 2003.

The application was received in the Commissioner’s office mid afternoon on 27 June 2003. On 30 June 2003, the applicant’s solicitors forwarded a copy of the flying minute, evidencing the committee’s authorisation for the lodgement of the application. The Commissioner has referred the application to me pursuant to section 247 of the Act, to consider whether an interim order should be made.

On 30 June 2003, a member of the Commissioner’s staff arranged a teleconference at 9.30am on 1 July 2003 between the applicant’s solicitors, and the solicitors for the respondents, the owners of lot 53.

I conducted the teleconference as scheduled. Mr Mark Peacock, a partner of Hopgood Ganim Lawyers, represented the applicant body corporate. Mr David Jenkins, a partner of Nicol Robinson Halletts Lawyers, represented the owners of lot 53, Robert Anthony Hines and Margaret Patricia Walker. Although the respondents had not been formally invited by the Commissioner to respond to the application, prior to lodging the application on 27 June 2003 Mr Peacock had provided Mr Jenkins with a copy of the application, and had also arranged for a letter to be placed under the door of the respondents’ lot, when his various attempts to contact Mr Hines earlier that same day had been unsuccessful. The letter dated 27 June 2003 placed Mr Hines on notice that an application was to be made to the Commissioner’s office for an order that the installation works cease. During the course of the teleconference, Mr Jenkins advised me that Mr Hines was absent from Brisbane on holiday. I requested that Mr Jenkins ascertain the progress of the installation. The teleconference was reconvened on 1 July 2003 at 2.30pm, at which time Mr Jenkins advised me that the installation was 80% complete.

There was also considerable discussion between Mr Peacock and Mr Jenkins concerning by-law 22.5 and whether the respondents had obtained approval for the installation of the floors.

Mr Peacock’s instructions were that approval had not been obtained, which of course precipitated the application, and in support of that argument, Mr Peacock relied upon the flying minute appearing as annexure 3 in the material.

Mr Jenkins relied upon a statement provided by Mr Hines, in which he stated that he had been advised by the body corporate manager and later, certain members of the committee, that the installation of timber flooring would not be a problem as long as it complied with the requirements of the body corporate by-laws, and satisfied the noise benchmarks.

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.

It is common ground that the respondents have not obtained written approval for the installation of their flooring. However, the installation was 80% complete on 1 July 2003. Mr Jenkins submitted that, on the balance of convenience, the work should be allowed to continue, so that acoustic testing on the installed floor, as envisaged by by-law 22.5(b)(ii), can be carried out. Mr Jenkins stated that his clients are well aware of their responsibility under by-law 22.5(b)(iii), but are confident that the flooring will achieve the performance specification set out in by-law 22.5(b)(i).

Mr Peacock’s view was that as the respondents had not obtained approval for the installation, then an order should be made suspending the works, otherwise the authority of the body corporate committee would be completely undermined, and any owner who just chose to flout the by-laws would essentially do so with impunity.

I do not propose to make any finding at this stage as to whether the respondents were justified in assuming they had committee approval in principle, for the installation of the flooring. I note that Mr Hines referred to his various conversations with certain members of the committee and the body corporate manager. No doubt the specific content of these conversations will be detailed further in later material.

In my view an order suspending the works would do no more than create a most unsatisfactory hiatus. The acoustic testing could not be carried out on a completed floor, and the lot would be uninhabitable in its present state. To require the respondents to remove the flooring at this stage would prevent them from demonstrating that the flooring did in fact meet the noise benchmarks. The respondents are apparently aware of the consequences should the benchmarks not be met. Furthermore, the body corporate is not disadvantaged by my decision not to suspend the works, as its remedies are still available in final orders.

I intend therefore to dismiss the application for an interim order suspending the works. I do, however, intend to order that the acoustic testing be carried out and a report on that testing be provided to the body corporate and to this office within 14 days of the date of this order. At that time, the application for final orders shall be further considered.

REFERENCE: 0441A-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24652
Name of Scheme:	Grosvenor Apartments - Brisbane
Address of Scheme:	PO Box 7972 BUNDALL QLD 9726

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Grosvenor Apartments - Brisbane, CTS 24652

I hereby order that the owners of lot 53, Grosvenor Apartments – Brisbane CTS 24652 shall arrange for Dynamic Timber Floors to remove skirting boards in lot 53 on Friday 10 October 2003 for the purpose of conducting a visual inspection, and, if indicated, remediation work, and thereafter acoustics testing.

I further order that in the event that the acoustics testing meets the FIIC performance levels set out in the by-laws the owners of lot 53 will make contact with Ron Rumble Pty Ltd with a view to having the tests verified either on Friday 10 October 2003 or as soon as practicable thereafter.

I further order that in the event that the acoustic testing does not meet the FIIC performance levels set out in the by-laws, then the owners of lot 53 shall, by 5.00pm on Tuesday 14 October 2003, produce a report from Dynamic Timber Floors and/or its acoustics engineer, Mr Roger Hawkins, setting out what further remediation work and testing is proposed for the consideration of the adjudicator and the applicant.

I further order that in the event that objection is raised by the applicant to the further proposal a teleconference between the parties shall be held on Wednesday 15 October 2003 at 2.00pm.

I further order that in the event that no objection is raised by the applicant to the further proposal, the work and further acoustics testing shall be completed within 14 days from the date of the report.



I further order that in the event that the further acoustics testing meets the FIIC performance levels set out in the by-laws the owners of lot 53 will make contact with Ron Rumble Pty Ltd with a view to having the tests verified as soon as practicable after the completion of the work.

I further order that in the event that Ron Rumble Pty Ltd confirms that the timber flooring then meets the FIIC performance levels set out in the by-laws this application shall be at an end.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0441-2003

"Grosvenor Apartments - Brisbane" CTS 24652

The applicant, the body corporate for Grosvenor Apartments – Brisbane, has sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

3.	That the owners of lot 53, Grosvenor Apartments – Brisbane CTS 24652 be restrained and an injunction hereby granted restraining the owners from installing, causing to be installed or placing upon any part of the lot hard flooring for a period to be ordered by the adjudicator or until further order in accordance with section 279(2) of the Body Corporate and Community Management Act 1997 (Qld).
4.	That the owners of lot 53, Grosvenor Apartments – Brisbane CTS 24652 remove the works from the lot in accordance with by-law 22.5(e) of the scheme in the event that the owners install, cause to be installed or place in or upon any part of the lot hard flooring in contravention of the scheme (sic).

The applicant also sought final orders in similar terms.

On 4 July 2003, I made the following interim order:

I hereby order that the application for an order that the owners of lot 53, Grosvenor Apartments – Brisbane CTS 24652 be restrained and an injunction hereby granted restraining the owners from installing, causing to be installed or placing upon any part of the lot hard flooring for a period to be ordered by the adjudicator or until further order in accordance with section 279(2) of the Body Corporate and Community Management Act 1997 (Qld), is dismissed.

I further order that the owners of lot 53 shall, within 14 days of the date of this order and at their cost, have the Floor Impact Isolation Class of the installed flooring determined by a field test conducted by an accredited acoustic consultant approved by the committee and provide a copy of the consultant’s report to the committee and to the Office of the Commissioner for Body Corporate and Community Management.

The installation of the timber flooring has subsequently been completed, and acoustic testing has revealed that it does not presently meet the FIIC performance levels required in the by-laws.

On 6 October 2003 I conducted a meeting between the parties, their legal representatives and two acoustic engineers, Mr Ron Rumble and Mr Roger Hawkins and the technician who conducted the acoustic testing for Ron Rumble Pty Ltd. It was agreed that further interim orders would be made to facilitate the timely completion of remediation work required to be undertaken on the timber flooring.

The chairperson of the body corporate, Mr Dart, advised the parties that the owner of the lot below the respondents’ lot, Ms Hopkins, had instructed him that she would make her lot available on 10 October 2003 between 9.00am and 5.00pm to enable further acoustic testing to be carried out.

I have made further interim orders as agreed.