Rivage Royale [2005] QBCCMCmr 399 (26 July 2005)

Last Updated: 19 July 2006

REFERENCE: 0505-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4163
Name of Scheme:	Rivage Royale
Address of Scheme:	75 Brighton Parade SOUTHPORT QLD 4215

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

the Body Corporate for Rivage Royale

I hereby order that the application by the Body Corporate for Rivage Royale: a. That an interim order be granted preventing any owner or occupier of a lot or their invitees, from using the multi purpose room contained within the complex on common property for the purpose of a stretching class, pilates or the cooking of any food stuff material within such area of common property, b. That such interim order shall remain in place until Final Orders are handed down in dispute application 0451/2005, c. That the adjudicator make any other orders that he or she may deem appropriate, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0505-2005

"Rivage Royale" CTS 4163

The applicant, the Body Corporate for Rivage Royale has sought the following interim orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

d. That an interim order be granted preventing any owner or occupier of a lot or their invitees, from using the multi purpose room contained within the complex on common property for the purpose of a stretching class, pilates or the cooking of any food stuff material within such area of common property.
e. That such interim order shall remain in place until Final Orders are handed down in dispute application 0451/2005.
f. That the adjudicator make any other orders that he or she may deem appropriate.

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.

Determination:

By this application, the body corporate seeks to implement, by way of a prohibition on certain activities in the multi purpose room pending the making of final orders in respect of application 0451 of 2005, the terms of certain committee resolutions previously carried. These resolutions were the subject of application 0451 of 2005, and it is quite apparent that the intent of this application is to circumvent the effect or operation of the interim order. In that application, by way of interim order, I ordered the continuation of the status quo in respect of certain use and enjoyment of common property pending a final determination of that application. The effect of this order if made will negate the terms of the interim order in 0451 of 2005.

I intend to dismiss this application. If the body corporate believes that my interim order was wrong, then I suggest that the appropriate course of action is to appeal the terms of that order.