The Meriton [2004] QBCCMCmr 45 (22 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0809-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18165
Name of Scheme:	The Meriton
Address of Scheme:	29 - 39 Woodcroffe Avenue MAIN BEACH QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mr McEwin, Mr Oliver, and Mrs Bolton, owners of lots 8, 32 and 25 respectively

I hereby order that, notwithstanding a committee resolution on 5 November 2003, the applicants are entitled to retain the shutters installed on their lots in October 2003 pending a final determination in respect of this dispute. This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0809-2003

"The Meriton" CTS 18165

Interim Application

The Meriton Community Titles Scheme (The Meriton) is an 83 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application for interim orders. It arises out of an application by Robert McEwin, Hendrik Olivier and Laurice Bolton, owners of lots 8, 32 and 25 respectively (applicants) seeking orders against the body corporate for The Meriton (respondent).

Interim Orders Sought

This is a dispute about the installation of shutters on balconies at The Meriton.

The applicants are seeking interim orders that would have the effect of allowing them to retain shutters installed on their balconies despite those shutters being erected without the permission of the committee. These interim orders would allow the shutters to remain in place pending a final determination of whether the body corporate committee should allow all owners the option to install shutters and promote this option to owners.

Submissions

The applicants have provided submissions to the effect that:

• Owners have recognised the need for wind breaks on balconies at The Meriton for some time;
• Furniture is regularly blown off balconies due to high winds;
• The body corporate has specifically apportioned liability to lot owners for anything that blows off balconies but has refused to allow owners to erect windbreaks. This is an unacceptable risk to the public and expensive for owners;
• Lot owners with protuberant balconies have special needs to secure their properties due to the continual action of cross winds. The body corporate committee has delayed unreasonably in considering the applicants’ proposed solution and has pursued alternative solutions that are not acceptable to the owners.

Submissions on behalf of the body corporate are to the effect that:

• The committee is leaving it to the owners to decide if they will approve installation of windbreaks. If the owners eventually approve such installation there will be conformity and the windbreaks will be in keeping with the appearance of the building;
• A motion for approval to erect shutters submitted by one of the applicants was ruled out of order as there was insufficient information for the owners to make an informed decision;
• The committee engaged an engineer to advise on the most suitable windbreak for the building. This engineer recommended a permanent glass windbreak with aluminium frames;
• Despite the applicants being aware of the actions taken by the committee they installed shutters in direct contravention of the by-laws;
• The committee issued a by-law contravention notice to the applicants but resolved to take no further action until the windbreaks could be considered at general meeting. The committee proposed a motion for approval of glass windbreaks and a motion for installation of fold back shutters. Neither motion was passed so the applicants are to be instructed to remove the unapproved shutters immediately.

Background

There appears to be agreement that it would be beneficial to give owners permission to install windbreaks, at least on the rounded balconies on the units on the southern side of the building. It also appears to be agreed that it is preferable for the appearance of the scheme if the body corporate can agree on one form of windbreak that all owners desiring windbreaks can install.

The substance of the dispute appears to centre on what type of windbreak should be approved. The application itself appears somewhat circuitous in seeking to invalidate a motion before the general meeting that failed to approve the applicants’ shutters, consequently affecting a resolution that the applicants be requested to immediately remove the shutters if not approved by resolution at general meeting.

In short, there has been disagreement about what type of windbreak should be used. The applicants have become impatient at the delay and have installed their preferred option of shutters. The body corporate claims these are in breach of the by-laws. The applicants want to be able to keep their shutters pending a final determination. As a final determination, the applicants want the body corporate’s failure to approve shutters as windbreaks to be declared unreasonable.

Decision

Interim injunctive relief

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

The applicant is seeking orders of an injunctive nature designed to allow them to retain their shutters until a final determination of whether the shutters should be allowed. For it to be just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I would need to be satisfied that the application raises a serious question to be determined. I would also need to be satisfied that the balance of convenience between the parties justifies the grant of injunctive relief. That is, I would need to balance the inconvenience to the body corporate of allowing the shutters to remain when they may subsequently need to be removed against the inconvenience to the applicant of allowing the body corporate to require removal of the shutters when they may subsequently be approved for installation.

Serious question to be determined

It seems clear that the applicants are in contravention of the by-laws for the scheme. By-law 9 provides that "An Occupier must not make a change to the external appearance of a Lot (including installation of any shutters, awnings, blinds or antennae) or make any structural alterations to a Lot, except with the consent in writing of the Body Corporate Committee".

The only serious question to be determined appears to be whether the contravention of by-laws results from the body corporate or body corporate committee failing to act reasonably. They body corporate must act reasonably in respect of its administration of the scheme and the by-laws (Act, 94(2)). If the applicants can establish that the body corporate has unreasonably refused to permit installation of shutters then they have a strong likelihood of obtaining an order that the body corporate permit any owner to install shutters as a windbreak.
Based on the applicants’ material there could be some suggestion that the body corporate committee has acted unreasonably by:

• Delaying unduly in considering appropriate windbreaks;
• Engaging an engineer to consider only the option of enclosing balconies with glass rather than considering the option of installing shutters;
• Contributing to payments for furniture damaged by being blown of the balcony but not giving permission to erect shutters to prevent similar damage occurring on subsequent occasions;
• Failing to give the applicants an opportunity to present details on installation of shutters.

There is also a suggestion that owners were mislead into voting against a resolution to approve installation of shutters. However, I am not convinced that there is satisfactory evidence to support this claim.

The applicants’ material satisfies me that there is a serious question to be determined, particularly regarding whether the committee has unreasonably delayed in considering appropriate windbreaks or failed to give the applicants an opportunity to present details on installation of shutters.

The submissions on behalf of the body corporate set out the history of the dispute and appear to establish that the applicants are in contravention of the by-laws. However, they do not satisfactorily address the substance of the dispute regarding whether the body corporate has unreasonably failed to approve the installation of shutters.

Further, in order to finally determine this dispute it appears necessary to seek submissions from all owners in The Meriton.

Balance of convenience

The applicants have established that there is a serious question to be determined regarding whether the body corporate has unreasonably refused to approve the installation of shutters. However, to gain an interim order the applicants will also need to establish that the balance of convenience favours allowing the applicants’ shutters to remain in place pending the final determination.

The applicants have spent significant sums of money to install the shutters. The applicants have also provided evidence that the shutters are used to help prevent furniture being blown off their balconies. There would be significant inconvenience in allowing the body corporate to require removal of the shutters and subsequently allowing the applicants to replace the shutters if they are ultimately successful in their application. Alternatively, if the applicants are unsuccessful in their application there is no obstacle to requiring the applicants to remove the shutters at that time.

I am therefore prepared to make an order allowing the applicants to keep their shutters in place pending a final determination.

Order

For these reasons, I make the interim order above.

The application will be allowed to proceed to submissions and final determination in the normal course.