Saltwater [2004] QBCCMCmr 147 (19 March 2004)

Last Updated: 30 September 2005

REFERENCE: 0070-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30139
Name of Scheme:	Saltwater
Address of Scheme:	30 Macrossan Street, Port Douglas QLD 4871

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Saltwater

I hereby order that Juniper Commercial Holdings Pty Ltd, the owner of lot 25, or the occupier thereof, shall not undertake or complete any further work to common property associated with lot 25 until such time as body corporate authorisation for such work is obtained. I further order that in the event that body corporate authorisation is not obtained for the work at the EGM to be held on 31 March 2004, then Juniper Commercial Holdings Pty Ltd, the owner of lot 25, or the occupier thereof, shall not undertake or complete any further work to common property associated with lot 25 until such time as a final order to this application is made, the application is withdrawn, or this order is of no effect through operation of law.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0070-2004

"Saltwater" CTS 30139

The applicant, the body corporate for Saltwater has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

All core penetrations made be repaired and returned to their original state. That no piping or wiring be allowed to extend into or on exclusive use areas of other lot owners.

The applicant body corporate has also sought an interim order, quote –

Suspend all works associated with the building project in lot 25 that involve exclusive use areas of other lot owners or into common property.

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)).

The application alleges that –

The owner of lot 25 who has leased out their premises has permitted their tenant without any approval from the committee to engage a contractor to drill six (6) core holes through the concrete floor of lot 25 into the car park below and then attempt to permanently install drains and piping from their lot and suspend them on the roof area of the car parks in question which are directly beneath lot 25.

The parties should note that at this stage, I am considering the requested interim relief. I am not considering the final order sought by the applicant body corporate, nor the final resolution of this dispute. The interim order seeks the suspension of "all works associated with the building project in lot 25 ...".

In considering the interim order, this office requested a submission from the owner of the lot in question, lot 25, Juniper Commercial Holdings Pty Ltd (the respondent). The respondent is the owner of several lots in the scheme. The respondent has made a submission which deals with the totality of the application. As I have indicated, I intend at this stage to only consider the interim order sought.

It is clear from the respondent’s submission that the work is proposed or intended; and that it involves areas of common property. It is not clear whether the work has actually commenced and if so, whether it has in fact been completed. However, from the application it appears to have been commenced. It is further clear from the respondent’s submission that body corporate consent or authorisation to the work has not presently been obtained. The respondent’s submission states that it has sought approval of the body corporate by way of authorisation of the body corporate in general meeting. The submission concludes –

We note that a meeting of the body corporate has been called and will be held on 31 March 2004 where no doubt these matters may be discussed in greater (detail) between the parties and then resolved.

It is clear in the circumstances that the respondent has commenced work to common property for which body corporate authorisation has not been obtained. Given this, I intend to order that Juniper Commercial Holdings Pty Ltd, the owner of lot 25, or the occupier thereof, shall not undertake or complete any further work to common property associated with lot 25 until such time as body corporate authorisation for such work is obtained. Further, that in the event that body corporate authorisation is not obtained for the work at the EGM to be held on 31 March 2004, then that Juniper Commercial Holdings Pty Ltd, the owner of lot 25, or the occupier thereof, shall not undertake or complete any further work to common property associated with lot 25 until such time as a final order to this application is made, the application is withdrawn, or this order is of no effect through operation of law.