La Porte D'Or [2004] QBCCMCmr 591 (24 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0710-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D’Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Vito Christopher Giorgio, the co-owner of lot 153

I hereby order that the body corporate shall pay for the carpeting ($8,118.00) and electrical works ($1,734.00) carried out on the penthouse foyer pending final determination of this application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0710-2004

"La Porte D’Or" CTS 12681

ORDERS SOUGHT

The applicant, Vito Christopher Giorgio, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

A. That the committee be stopped from implementing the resolutions passed at the committee meeting of the 15^th October 2004 or any future committee meeting which relate to payments for carpeting, electrical works or any other works to the penthouse foyer, which form part of the refurbishment of improvements to common property by lot owners.
B. That the committee be stopped from authorising the spending of body corporate monies (admin fund or sinking fund) for the payment of invoices relating to the refurbishment of the improvements to the penthouse foyer as these works are the refurbishment of improvements to common property as made by previous penthouse owners.
C. That the committee be stopped from authorising the spending of body corporate monies (admin fund or sinking fund) for the payment of invoices relating to the refurbishment of improvements to common property previously made by lot owners (unless the lot owners have been excused).
D. That the committee be stopped from carrying out improvements to the common property by the body corporate (except by resolution at general meeting), and that the "limit for major spending" regulations be applied and further that the "improvement limit" regulations be applied.

The applicant initially sought interim orders of an adjudicator in similar terms. However, in a telephone conversation on 19 November 2004 with a member of the Commissioner’s staff, Mr Frank Hemeter, the applicant stated that the body corporate committee had resolved by majority to pay the contractors and he understood that the body corporate would have to make the payments (as the work had been completed). He further stated that he was prepared to withdraw his application for interim orders A and B and sign the cheques provided the final order found that the penthouse lot owners were responsible for the costs, (and therefore that the body corporate would be reimbursed any monies it had paid). The applicant explained that he just wanted to ensure that his application was not prejudiced if he followed this course.

JURISDICTION

The application evidences a dispute between the committee for the body corporate for a community titles scheme and a member of the committee (section 227(1)(h) of the Act).

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) provides that an adjudicator may make an interim order 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.

SCHEME DETAILS

La Porte D’Or was established upon registration of a building units plan (now described as a building format plan) on 30 March 1977. The scheme comprises 181 lots and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicant explained that approximately 20-25 years ago the then owners of the penthouse lots had sought approval to make improvements to the penthouse foyer. Those improvements comprised the laying of marble floor and wall tiles and the installation of new light fittings. The cost of the improvements had been borne by the penthouse lot owners.

In recent times concrete cancer had been discovered in the floor slab of the penthouse foyer, and a large area of the marble floor tiles had been taken up to allow access to the slab so as to remedy the problem. Subsequently, it was decided that, as the marble tiles could not be matched, the area would be carpeted, and the body corporate committee resolved to contribute to the cost of the carpet, with the penthouse owners paying the balance of the cost. The body corporate committee also resolved to pay for the installation of emergency light fittings.

The applicant explained that in his view the penthouse lot owners should be responsible for the whole cost of this work. He relied upon section 114(4)(b) of the Standard Module in support of his argument.

Submissions were sought from the penthouse lot owners and from the body corporate committee.

Two penthouse lot owners responded, as did two committee members. I do not intend to set out in detail the content of these submissions in this interim order, but I shall do so in the final order.

DETERMINATION

In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset 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 which 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 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. However, given that an interim order may be made ex parte (ie. without reference to, or submission from the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be dismissed. It is a matter for an adjudicator to determine in respect of each application.

The applicant has indicated that he intends to sign the cheques required to pay the contractors for the work which has already been completed on the penthouse foyer. I consider that this is an appropriate course of action, because the question of who is ultimately to be responsible for the payments can be addressed in the final order. Furthermore, the amounts involved are within the committee’s spending limit, so to that extent the committee could properly resolve to expend such monies. I have however made orders to facilitate such payments, pending the final determination on the issue, so as to remove any doubt.

The orders sought in C and D appear to me to be more in the nature of declaratory orders, and I therefore intend to deal with those as final orders as well.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.