Waterfront Place - Noosa [2005] QBCCMCmr 176 (31 March 2005)

Last Updated: 5 July 2005

REFERENCE: 0192-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3592
Name of Scheme:	Waterfront Place - Noosa
Address of Scheme:	255 Gympie Terrace NOOSAVILLE QLD 4567

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

Samuel Di Rosa and Amanda Jayne Di Rosa, the owners of lot 3

I hereby order that the application by Samuel Di Rosa and Amanda Jayne Di Rosa, the owners of lot 3 for an interim and final order that motion 4 (application for material change of use) purportedly passed by the body corporate at an EGM held on 6 March 2005 was invalid and at all times void, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0192-2005

"Waterfront Place - Noosa" CTS 3592

The applicants, Samuel Di Rosa and Amanda Jayne Di Rosa, the owners of lot 3, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

An order declaring that motion 4 (application for material change of use) purportedly passed by the body corporate at an EGM held on 6 March 2005 was at all times void.

The applicants have also sought an interim order, quote:

An order seeking a determination as to whether motion 4 (application for material change of use) passed by the body corporate an EGM held on 6 March 2005 is invalid.

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.

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, or will be refused, 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 refused. It is a matter for an adjudicator to determine in respect of each application.

I make the observation that the "interim order" sought by the applicants is not interim in nature; rather it seeks a final determination of the application on an interim basis. The applicants were requested by this office to amend their application so as to seek interim relief. The amendment provided by the applicants was not materially different from the original "interim order" sought by them. In the circumstances, had the submission in response to the requested interim order by the owner of lots 1, 2, 4 and 5, Gympie Tee Pty Ltd (the respondent), not been as it was (more later) then I would have had no hesitation in dismissing the application for an interim order, as not being appropriate. For the applicant’s future benefit, an appropriate interim order might have been:

That in the event of the local authority approving a material change of use for lots 1 and 2, that the owner of those lots not implement or otherwise act upon such approval until a final determination of the validity of motion 4 is made.

The dispute is a relatively straightforward one. The applicants seek the invalidity of motion 4, purportedly carried by ordinary resolution (4 yes, 1 no) at the EGM of the body corporate held on 6 March 2005. The motion headed Application of material change of use made to Noosa Council by the lot owner of lots 1 and 2 purports that the body corporate consents to the application for material change of use of lots 1 and 2 being lodged by the owner of those lots with the relevant local authority.

The applicant alleges that the motion required a resolution without dissent for the reason:

The applicants rely on the advice contained in TEYS Legal’s letter of 6 March 2005 that because the material change of use also related to common property, the effect of which is to give a "special privilege" over the common property to lots 1 and 2 for an infinite period, then it follows that the resolution of the body corporate to consent to the material change of use must be by resolution without dissent.

This is the totality of the applicant’s objection to the validity of the motion. The respondent has submitted that:

... The application per se sought approval for a material change of use of the areas of lots 1 and 2 and whilst there has been discussion as between the company and the council in respect of the proposals for usage of any outdoor dining area of those two (2) lots on common property it has always been the understanding of the company that the application is limited to the areas of lots 1 and 2 respectively and that the council is dealing with the application on that basis.

The council is yet to make a determination on the application for material change of use for lots 1 and 2. If the council makes a determination in favour of the application for material change of use as lodged by the company then such determination will be the subject of various terms and conditions to be imposed by the council which may well include condition of and relating to the use of parts of the common property area but until the outcome and determination by the council (if granted) of the application for material change of use is known any terms and conditions of a favourable decision by the council (if granted) are totally unknown at this point in time and as such futuristic in their application or consideration at this point in time by the body corporate. Depending on exactly what are any terms and conditions of approval (if granted) by the council then at that point in time those terms and conditions, if they relate to the use of the common property area, will be the subject of motions to be submitted to the body corporate for consideration and voting upon by lot owners.

I am generally in agreement with the respondent’s position as expressed in the above statements, and conclude that for these reasons the motion in question was correctly and validly carried as an ordinary resolution. My only reservation is to indicate that I consider that it would be improper for the respondent as the owner of the relevant lots to make, or have made, any representations to the local authority to the extent of it being able to obtain necessary body corporate approvals in respect of common property. Given that no such approvals have been sought or obtained, then the approval of the local authority should not in any way be premised on the basis of these approvals being available or forthcoming. Subject to this observation, I intend to dismiss this application in its entirety. There will be no further order made in respect of this application.