Imperial Surf [2005] QBCCMCmr 221 (21 April 2005)

Last Updated: 5 July 2005

REFERENCE: 0184-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9742
Name of Scheme:	Imperial Surf
Address of Scheme:	72 - 80 Esplanade SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Craig Chapman, the Owner of Lot 1

I hereby order that the application for an interim order by Craig Chapman, the owner of Lot 1 that: 1. An order that all lot owners in the Scheme be granted access to areas of Common Property in accordance with section 35 of the Act, as was the case prior to the Committee meeting held on 1 September 2004. 2. An order that, within 7 days of the date of this Order, the Committee do all things reasonably necessary to grant access to areas of common property to all lot owners including programming entry keys, so that lot owners can access all areas of common property. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0184-2005

"Imperial Surf" CTS 9742

APPLICATION

This application is by Craig Chapman of Lot 1 (applicant) against the body corporate (respondent) seeking the following outcomes.

The final outcomes sought are, quote:

1.	A declaration that the Body Corporate Committee in restricting access of lot owners to Common Property is not administering, managing and controlling the Common Property reasonably and for the benefit of lot owners in accordance with section 152 of the Act.
2.	A declaration that the Body Corporate acted unreasonably in restricting access to common areas, in that it held legal advice that it was not entitled to do so and acted against that legal advice in restricting access.
3.	A declaration that the restriction of access to areas of Common Property is a restricted issue pursuant to Section 26(1)(b) of the Module.
4.	A declaration that Motion 12 of the Committee meeting of 1 September 2004 be overturned on the basis that the Committee was not entitled to consider the Motion, the Motion being a restricted issue.
5.	A declaration that the Motion (regarding restricting access) of the Committee meeting of 1 March 2005 be overturned on the basis that the Committee was not entitled to consider the Motion, the Motion being a restricted issue.

The applicant has also sought the following interim orders, quote:

1.	An order that all lot owners in the Scheme be granted access to areas of Common Property in accordance with section 35 of the Act, as was the case prior to the Committee meeting held on 1 September 2004.
2.	An order that, within 7 days of the date of this Order, the Committee do all things reasonably necessary to grant access to areas of common property to all lot owners including programming entry keys, so that lot owners can access all areas of common property.

The applicant claims that at a meeting dated 1 September 2004, the committee resolved that the secretary advise lot owners that the new security access control will be operational on or about 22 September 2004 and that the keys can be obtained from the building manager. The effect of the new security system is that the access key held will allow elevator access to only the floor of each owner’s lot. The applicant makes reference to a recent life threatening emergency whereby the ambulance service could not gain access to the relevant apartment until a committee member was located. The applicant states that the committee reaffirmed the September 2004 decision at its meeting dated 1 March 2005. The applicant contends that every lot owner has a proprietary interest in the common property (section 35, Act) and must be allowed access to all areas of the common property, and that prior to the September 2004 committee meeting, all owners did have such access.

JURISDICTION

"Imperial Surf" Community Titles Scheme 9742 is a 165 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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 (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 has sought an interim order that all lot owners in the scheme be granted access to areas of common property in accordance with section 35 of the Act. For this reason, 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. The submissions made on behalf of the body corporate committee can be generally summarised as:

• The applicant is seeking to expedite the dispute in making an application for an interim order.
• The installation of the security system ensures that the body corporate complies with its legislative duties to administer, manage and control the common property and body corporate assets reasonably for the benefit of lot owners.
• The body corporate actions are similar to those of the "Surfers Plaza Resort" body corporate, which have been validated by an adjudicator’s order 0678-2004.
• The application should be dismissed and the body corporate costs of responding to this application should be paid by the applicant.

DETERMINATION

To assist me in determining whether it is just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I consider it is relevant to consider whether the likely inconvenience should no interim order be granted outweighs any inconvenience likely to result from the interim order. In particular, it is relevant to consider whether an interim order is necessary to prevent something occurring that cannot be adequately redressed by final orders.

The decision to implement and operate access security control appears to have been made at the committee meeting held on 1 September 2004. The excerpt from the minutes of this meeting states that the system "will be operational on or about 22 September 2004". If the system was in fact operational at this time, this application has been made some 6 months later. While I note that the applicant and possibly other lot owners may have been negotiating with the committee since the committee meeting, the delay in making the application is significant given that an interim order may be made if I am satisfied on reasonable grounds that the order is necessary because of the nature or urgency of the circumstances to which the application relates (Act, 279). The applicant has made reference to an isolated emergency situation. In my view, this circumstance is not sufficient to warrant an interim order given the amount of time which has lapsed before the application was made. The body corporate has incurred an expense in implementing the system and given the period of operation, it would seem that most users are familiar with its operation. In my view, the inconvenience which would be caused by the making of an interim order outweighs any likely inconvenience which may arise through the continuance of the operation of the system.

In dismissing the interim order, I have also taken into consideration that the effect of the interim order is of the nature of a final determination on this matter. In my view, this matter cannot be finally determined by interim order. The system has operated for at least 6 months without any indication that owners generally have opposed its implementation. For example, there is no evidence that the owners sought to oppose the committee resolution under section 37 of the Standard Module, or that owners have sought to have the matter subsequently considered at a general meeting of the body corporate.

The body corporate has sought to have the application dismissed in its entirety, and has relied on a decision made on "Surfers Plaza Resort" 0678-2004. I do not agree with this contention. In my opinion, the circumstances of "Surfers Plaza Resort" are significantly different to this dispute. My reading of "Surfers Plaza Resort" indicates that the applicant did not dispute the body corporate decision to install and operate a security system. The applicant was not seeking an outcome that the body corporate allows owners to have unrestricted access to common property. The applicant was merely seeking a change to the system to suit his purposes. Further, it was submitted in "Surfers Plaza Resort" that "the body corporate has implemented a security system that accords with the wishes of the majority of owners in the scheme". I am not aware that the committee has the same support from lot owners in "Imperial Surf".

The body corporate has stated that the system ensures that it complies with its legislative duties to administer, manage and control the common property and body corporate assets reasonably for the benefit of lot owners. However, it has not provided any material to indicate that the security system has the support of owners generally. In addition, the body corporate has not made any submission that the decision made at the 1 September 2004 committee meeting is within the power of the committee (section 100, Act, sections 26 and 103, Standard Module). Further, the applicant raises the issue of emergency access to the building and it is conceivable that the security system may restrict access in these circumstances. In my view, the committee has not shown that there are adequate systems or processes in place to properly manage such situations.

Therefore, while I have dismissed the application for an interim order, I have not dismissed the application entirely.

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.