Ellenmac [2004] QBCCMCmr 558 (12 November 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Diamond World Corporation Pty Ltd, the Owner of Lot 13:

I hereby order that pending a final determination of this application, the Body Corporate (including through its Committee) shall not take any steps to implement or otherwise carry out the Committee’s resolution of 14 October 2004 requiring the removal of the roof over "the common area on level G" at the cost of the Owners of Lots 12, 13 and 14.

This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0675-2004

"Ellenmac" CTS 16423

The Owner of Lot 13, Diamond World Corporation Pty Ltd (the Applicant) has made a dispute resolution application to the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act).

The Applicant states that it is seeking the following outcomes from the application, quote:

Department of Natural Resources, Mines and Energy records show that the "Ellenmac" community titles scheme was created under a building units plan of subdivision (now known as a building format plan) registered on 4 January 1996. The scheme land consists of 14 lots and common property, and is used for residential purposes.

A new community management statement was recorded for "Ellenmac" on 24 July 2002. The community management statement shows that the Act’s Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) applies to the scheme.

This application was submitted to the Commissioner on 28 October 2004. The Commissioner referred the application to me under section 247(2) of the Act to decide whether an interim order was necessary due to the nature or urgency of the circumstances of the application. The Commissioner referred the application to me even though affected parties had not been given formal notice of the application or given an opportunity to make submissions about the application (section 247(3) of the Act).

At my request, on 1 November 2004 a staff member of this Office contacted the Body Corporate Manager for the scheme who confirmed that to date the Body Corporate had not taken any steps to cause the removal of the roof that is the subject of this dispute. I also understand that the removal of the roof was not imminent at that time. As a result, the Commissioner (at my request) provided the Body Corporate with formal notice of the application, and invited the Committee to make a written submission in response to the application prior to my consideration of the Applicant’s request for an interim order.

I have before me a submission from Mrs Irene Lenneberg, Mr Noel Capp and Mrs Shirley Capp. It is not clear that each of these persons is indeed a member of the Committee. I also have a submission from Ms Joy Clarke who is a member of the Committee.
Due the claimed urgency of this application, I have not provided the Applicant with a copy of the submissions, or allowed the Applicant an opportunity to reply to the submissions prior to my consideration of its request for an interim order.

The building units plan for "Ellenmac" consists of 7 main levels (Levels A to G). Lots 12, 13 and 14 are primarily located^[1] on the top two levels of the building (Levels F and G). I understand that the main residential parts of these lots are located on Level F with Level G including "roof deck" areas for each of these three lots.

The building units plan shows that most of the roof deck forms part of Lots 12, 13 or 14. However, I note that a relatively small part of Level G (including stairs and facilities for an elevator) form part of the common property for the scheme. There is also a by-law in place which provides that the Owners of Lots 12 and 14 are entitled to the exclusive use and enjoyment of stairs located on the north-eastern and north-western corners of the building respectively, which provide access to the roof deck from balconies located on Level F.

This is one of a number of dispute resolution applications currently before this Office concerning the "Ellenmac" community titles scheme. It appears that all of the current applications concern (at least in part) existing and proposed alterations to the roof deck area located on Level G of the building.

Photographs provided in relation to application reference number 0502-2004 show that a large, pergola style roof has been installed on Level G of the building above the roof deck. It appears that this roof provides protection for a large proportion of the roof deck, including those parts of Lots 12, 13 and 14 that are located on that level of the building.

I understand that the roof was constructed on behalf of the Owners of Lots 12, 13 and 14 on the basis of approval of the Body Corporate purportedly provided via an extraordinary general meeting of the Body Corporate held on 13 August 2002.

It appears that a dispute has arisen about whether the roof that has been constructed for the benefit of Owners of Lots 12, 13 and 14 is in accordance with the approval given by the Body Corporate. I am aware that at a later extraordinary general meeting (held on 16 August 2004) the Body Corporate purportedly approved particular modifications to the roof (including the addition of a spandrel around the roof and the extension of the eastern roof-line).

However, it appears that a further dispute has arisen concerning the roof. I understand that an allegation has been made that the presence of the roof (and its effect on air-flow) has adversely affected the operation of an air-conditioner servicing one of the lots included in the scheme. Apparently part of the air-conditioner is located on the roof deck level of the building.

The Applicant has provided a copy of the minutes of a committee meeting held on 14 October 2004. The minutes include the following statements at page 2:

The minutes record that the above motion was carried at the meeting with 5 votes in favour of the motion and 1 vote against the motion.

At this point, I am unclear as to the extent to which the Body Corporate intends to require removal of the roof, that is, I am not sure whether the Body Corporate is purporting to require the removal of the whole roof or just those parts of the roof over the common property. However, in either event it is clear that the Applicant considers that the above resolution is invalid and should not be carried out.

I am also unclear as to why the above motion refers to "Lot 19". Given that there is no Lot 19 included in the scheme, I am uncertain which lot is being referred to in the terms of the motion (although the Applicant appears to believe that the lot in question is Lot 9).

Section 227 of the Act limits the disputes that may be resolved under the Act’s dispute resolution provisions to those between particular combinations of parties involved in community titles schemes. This application which describes a dispute between the owner of a lot included in a community titles scheme and the body corporate for that scheme falls into the category of dispute contemplated by section 227(1)(b).

Section 276(1) of the Act allows adjudicators to make just and equitable orders to resolve disputes in community titles schemes about a range of matters, including claimed or anticipated contraventions of the Act or a scheme’s community management statement.

In this case, the Applicant appears to be alleging that the Committee for the Body Corporate has contravened provisions of the legislation by making decisions that exceed the statutory authority of body corporate committees. As a result, the dispute is one that may be considered by an adjudicator under the dispute resolution provisions.

At this time, I am solely concerned with the application for an interim order. Section 279(1) of the Act allows an adjudicator to issue an interim order in response to an application "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates".

Two examples of possible interim orders accompany section 279(1) and are suggestive of the usual circumstances where an interim order might be made. While the range of matters that may be the subject of an interim order is not capable of definition, it is worth noting that both examples of interim orders included in the Act are in the nature of injunctive relief.

The nature of the examples of interim orders mentioned in the Act, and the fact that the operation of interim orders is generally limited to one year (section 279(2)(a)), suggests that the purpose of interim orders is not to simply expedite a final outcome of a dispute. Rather, it seems to me that generally, interim orders are to be used to preserve a situation, in other words to maintain the "status quo", pending a final determination of the issues in dispute. However, in certain circumstances it may be just and equitable for an adjudicator to require a party to take some positive action in the context of an interim order.

The Applicant has sought an interim order preventing the Body Corporate (including through its Committee) from taking steps to cause the removal of the roof in accordance with its resolution of 14 October 2004. I have decided that an interim order in these terms should be issued. I have a number of reasons for this decision.

Firstly, the Committee has been unclear as to precisely what it requires concerning the extent of the proposed removal of the roof. It seems to me that this key issue must be clarified prior to any work being carried out to the roof.

Secondly, the Committee has not demonstrated in its submissions that there is any urgency in the removal of the roof. For example, the Committee has not shown that the roof is currently posing a threat to the health and safety of owners, occupiers or other people lawfully using the common property.

Thirdly, the Committee has provided little to verify or substantiate the allegation that the roof is having an adverse impact on the operation of the air conditioner which must be necessarily and urgently addressed. I do acknowledge that the owner of the relevant lot has not had an opportunity to comment on this issue to date, however, I anticipate that the Commissioner will invite all owners to make a submission about the application prior to a final determination of the dispute.

Fourthly, there may be a question of whether the Committee’s resolution requiring the removal of the roof is contrary to earlier decisions of the Body Corporate made at general meetings. In general terms, committees do not have authority to revoke or alter resolutions of bodies corporate made at general meetings (see section 58 of the Standard Module).

For all of these reasons, I consider that there are serious questions to be investigated and determined in this application, and furthermore, I consider that the balance of convenience favours the Body Corporate being restricted from carrying out the Committee’s resolution to require the removal of the roof, at least pending a final determination of this application. I have made an interim order in these terms.

^[1] Parts of these lots (presumably car parking areas) are located on the first level of the building (Level A)

Number of Scheme:	16423
Name of Scheme:	Ellenmac
Address of Scheme:	150 Swann Road Taringa, Queensland

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ellenmac [2004] QBCCMCmr 558 (12 November 2004)