Deakinpoint [2003] QBCCMCmr 95 (29 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0570-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9401
Name of Scheme:	Deakinpoint
Address of Scheme:	77 Cairns Street KANGAROO POINT QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mark Gillett & Carol Metcalfe, the Owners of Lot 4

I hereby order that pending the final determination of this application, the Body Corporate shall not authorise any person to paint the entry door to Lot 4.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0570-2003

"Deakinpoint" CTS 9401

1.	Orders sought

The Applicants, the Owners of Lot 4, have sought the following adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the Act") quote-

"That the front door of Unit 4 not be repainted unless as part of the interior refurbishment planned for calendar year 2003. That any further painting be at Body Corporate’s expense."

The Applicants have also sought the following interim adjudicator’s order, quote-

"That the Body Corporate not be permitted to engage a painter to repaint the front door of Unit 4 77 Cairns Street Kangaroo Point."

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.	Application details

This dispute resolution application was made on 26 August 2003. In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management ("the Commissioner") has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. The Commissioner has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application (section 247(3)).

3.	Matters in dispute

This dispute resolution application concerns the painting of the entry door to Lot 4. Briefly, I understand that the Applicants have previously painted the door on two relevant occasions. According to the Applicant, the Body Corporate objects to the painting on the basis that maintenance of the entry door is the responsibility of the Body Corporate. It appears that the Applicant is concerned that the Body Corporate intends to authorise a tradesperson to repaint the entry door to Lot 4.

4.	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.

In the supporting grounds to the application, the Applicant indicates that the Body Corporate intends to paint the entry door to Lot 4 on Monday 1 September 2003. It seems to me that if it is ultimately found that the Body Corporate’s actions in this respect are unlawful or otherwise invalid, then the Body Corporate may be subjected to further unnecessary expense, if for example, it is decided that the Body Corporate should repaint the door in a different colour or style. Further, I am mindful that the painting scheduled for Monday may cause some inconvenience to the current Occupiers of Lot 4.

In the circumstances, I am satisfied that the nature and urgency of the matters raised in the application are such that I should consider issuing an interim order.

5.	Determination

It seems to me that there is little urgency in painting the entry door to unit 4. In the circumstances, I have decided to issue an interim order preventing the Body Corporate from authorising anyone to paint the door pending a final determination of this application. This will allow for the proper investigation of this dispute resolution application, including by inviting the Committee and affected persons to make a written submission about the application.

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

I anticipate that persons affected by this application will shortly be given formal notice of the application and invited to make written submissions about the application. Parties should not take my granting of this interim order as a reflection of my views of the merits of the final order sought by the Applicants.