Sailfish Point [2005] QBCCMCmr 171 (24 March 2005)

Last Updated: 5 July 2005

REFERENCE: 0150-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20973
Name of Scheme:	Sailfish Point
Address of Scheme:	300 Cottesloe Drive MERMAID WATERS QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Russell Ellis, the owner of Lot 32

I hereby order that pending a final determination of this application, the Body Corporate for Sailfish Point Community Titles Scheme 20973 (including through its Committee) shall not proceed with, implement or otherwise act upon any resolution or take any steps to require the dismantling of, or removal of the timber decking constructed on Lot 32 and on the common property adjoining the northern boundary of Lot 32. 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the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).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 0150-2005

"Sailfish Point" CTS 20973

APPLICATION

This application is by Russell Ellis, the owner of Lot 32 (applicant) against the body corporate (respondent) seeking the following outcome under the Body Corporate and Community Management Act 1997 (Act), quote:

That The Body corporate Commissioner order that the Sailfish Point Body Corporate has not acted legally in instructing Hynes Lawyers to prepare a recommendation to all owners in respect to Motion 17 on the Annual General Meeting Agenda and accordingly that appropriate action be taken by The Body Corporate Commissioner.

A Final order that this application be supported on such further or other grounds, namely that the voting on Motion 17, at the Annual General Meeting on 25 February, 2005, was prejudiced by the letter dated 07/02/2005 from Hynes Lawyers to all owners, and further supported by the history of the complex and by the fact that the structure on lot 32 has been in existence for more than five years, that it was built with the knowledge and tacit consent of the body corporate and accordingly that the Body Corporate Commissioner order The Sailfish Point Body Corporate to approve "the improvement on common property" on the basis of the facts presented in this application and that it would be inequitable not to do so.

The applicant has also sought the following interim order of an adjudicator, quote:

AN INTERIM ORDER that the Sailfish point Body Corporate be prevented from and restrained or estopped from taking any action of any kind to remove an improvement on common property on or from any particular lot including lot 32.

JURISDICTION

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)).

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management ("the Commissioner") has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. The Commissioner has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application (section 247(3)).

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. 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.

The applicant seeks an interim order to prevent the body corporate from taking action of any kind to remove an improvement on the common property. Given that the applicant is seeking a final outcome that the disputed structure be approved, I am of the view that the circumstances warrant the making of an interim order.

SUBMISSIONS

Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (committee) with an invitation to respond by written submission to the matters raised in the application.

Hynes Lawyers made a submission on behalf of the body corporate consenting to an interim order that the body corporate shall not take any action of any kind to remove the improvement on Lot 32 which encroaches onto the common property. It is submitted that the interim order should not be binding on all lot owners as the body corporate should not be prevented from dealing with other lot owners in relation to other encroachments within the scheme.

A submission was also received from a lot owner. This owner was not invited to make a submission and while the submission has been accepted, it will only be considered if this matter is referred to an adjudicator for a final order.

DETERMINATION

The applicant has sought an interim order preventing the body corporate from taking action to remove "an improvement on common property on or from any particular lot including lot 32". However, the basis of the application relates specifically to the common property improvement on the northern boundary of Lot 32. The applicant has not specified the other improvements on another lot or the common property, and has not identified the relevant lot owner or owners. Therefore, I have disregarded this part of the interim order sought. If another lot owner has a dispute with the body corporate in relation to an improvement on that person’s lot or on the common property for the benefit of that owner’s, it is a matter for that owner to initiate and pursue their own appropriate course of action. The interim determination on this application will only relate to the improvement on or near the northern boundary of Lot 32.

The improvement which is the subject of this dispute is a wooden deck which it is contended was constructed in 2000. In July 2003, the body corporate issued the applicant with a "Notice of Continuing Contravention of a Body Corporate By-Law" claiming that the structure was in contravention of By-Law 9(b) of the scheme’s by-laws. The applicant submitted a motion to the Annual General Meeting (AGM) held on 25 March 2004 seeking body corporate approval for the improvement. This motion was ruled out of order by the person chairing the meeting. On 19 October 2004, the chairperson’s decision was ruled invalid by Adjudicator RA Meek in Order Reference 0256-2004. The applicant then sought body corporate approval for the improvement at the AGM held on 25 February 2004. The applicant’s motion (numbered 17 on the agenda for the AGM) was defeated by special resolution of the body corporate.

The applicant asserts that the actions of the committee prior to the February 2004 AGM were prejudicial to the outcome of the motion, denying him from presenting his position in the best light as suggested by the Adjudicator. The applicant states that rather than provide explanatory material to owners with the notice of the AGM, the committee instructed Hynes Lawyers to distribute a letter to all owners. The applicant claims that the instruction to Hynes Lawyers was not properly authorised and that the contents of the letter influenced the outcome of the motion. He adds that he could not rebut the recommendation in the letter as he was denied access to the body corporate roll by the body corporate manager due to privacy laws.

Given these claims, I am satisfied that the nature of the matters raised in the application warrant the making of the interim order even though there is no indication that the body corporate has initiated any steps seeking the removal of the structure. For these reasons, I have made the interim order.

This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.