Calypso Plaza Cairns Commercial [2004] QBCCMCmr 295 (7 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0361-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27323
Name of Scheme:	Calypso Plaza Cairns Commercial
Address of Scheme:	53 - 57 The Esplanade CAIRNS QLD 4151

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Scientific Management Associates (Victoria) Pty Ltd, the owner of lot 127

I hereby order that pending determination of this application, the body corporate for Calypso Plaza Cairns Site CTS 27262 and/or the body corporate for Calypso Plaza Cairns Commercial CTS 27323 shall take no action to enforce the Notices of Continuing Contravention of a body corporate by-law that have been issued to the applicant in relation to the neon sign "Italian Restaurant" which is erected on common property on the facia at the front of lot 127.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0361-2004

"Calypso Plaza Cairns Commercial" CTS 27323

The applicant, Scientific Management Associates (Victoria) Pty Ltd, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1. An order declaring that the body corporate for Calypso Plaza Cairns Site CTS 27262 and the body corporate for Calypso Plaza Cairns Commercial CTS 27323 have given their consent to the sign which is the subject of the application and that the applicant is entitled to continue to display the sign and is not in breach of body corporate by-laws; and
2. An order requiring the body corporate for Calypso Plaza Cairns Site CTS 27262 to withdraw the Notices of Continuing Contravention of a body corporate by-law that have been issued to the applicant in relation to the sign.

The applicant has also sought an interim order of an adjudicator as follows:

1. An order that pending determination of the application, the body corporate for Calypso Plaza Cairns Site CTS 27262 must take no action to enforce the Notices of Continuing Contravention of a body corporate by-law that have been issued to the applicant in relation to the sign.

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.

The applicant provided background information to this dispute, including that:

• In late 2001, and at the request of the body corporate manager, the applicant provided sketches and other details of a proposed sign to MPS Architects, being the architects who designed the strata title complex.
• On 2 November 2001 MPS Architects wrote to the body corporate manager recommending that its proposed sign be approved, noting that "...the proposed signage is appropriate in scale and will not detract from the overall building aesthetics. It is in general accordance with the intent of the Signage Policy Guidelines. I therefore recommend to the body corporate that the proposed signage be approved in respect to architectural merit."
• The applicant was advised on 11 December 2001 by the body corporate manager that the sign had "been approved of in principal by the site body corporate but will have to be ratified at a general meeting by a special resolution. We will organize this on your behalf in the New Year." The letter indicated that a copy had been sent to the chairpersons of the principal body corporate and to the chairperson of the subsidiary body corporate.
• Relying upon this advice, the applicant arranged for the sign to be erected, and it has been in place since March 2002.
• On 4 November 2003 the body corporate manager wrote to the applicant claiming that the sign had not been approved, and requesting that it be removed. Correspondence was exchanged and ultimately a Notice of Continuing Contravention was issued, leading to the lodgement of this application.

On the basis of the material provided thus far, I intend to make the interim order as sought. I have made this decision on the basis that the sign has been in place for over 2 years, with the full knowledge of the respective bodies corporate. Furthermore, the applicant operates a restaurant business from the lot, and removal of the sign before the final determination of this application would undoubtedly have an adverse impact upon the business. On the other hand, I do not consider that the presence of the sign will unduly impact upon the bodies corporate during this time.

The matter will now be investigated in accordance with the usual processes of the Commissioner’s Office and the body corporate committee and the body corporate manager will be invited to make a written response to the application.