No. 9 Port Douglas Road [2005] QBCCMCmr 453 (12 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0469-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4871

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

M McEvoy, the Owner(s) of lot 9

I hereby order that the application for interim orders is dismissed. The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0469-2005

"No. 9 Port Douglas Road" CTS 24368

Interim Application

No. 9 Port Douglas Road Community Titles Scheme (PDR) is an 18 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is described as a warehouse/office/residence converted to an 18 unit complex. Lot boundaries are designated under a building units plan (now known as a building format plan).

This is an application for interim orders. It arises out of an application by Michael McEvoy, owner of lot 9 (applicant) seeking orders against the body corporate for PDR (respondent).

The dispute concerns a claim by the applicant that the body corporate is liable for damage caused to his unit through water penetration from the slab above. The applicant seeks an interim order to require the body corporate to reimburse the costs of repairing the ceiling for the 2005 high season and claims he has suffered severe hardship as a result of repair costs and the loss of rental for the past six months.

Submissions

The applicant has provided submissions to the effect that the roof of the building leaks and that, for a number of reasons, this has not been fixed over approximately five years during which the applicant has owned the unit. He seeks a determination of whether the body corporate is labile for the damage, immediate repayment of the most recent repair costs, repayment of expenses over the past five years, damages for loss of rental income and relief from payment of levies in the interim.

Submissions on behalf of the body corporate are to the effect that at the annual general meeting of 18 March 2005 owners voted to investigate an option to put new roofing over the entire building. It is further submitted that the draftsman has finished preliminary drawings with two alternatives and the next step is to call an extraordinary general meeting to consider the alternatives and costings. Further, it is submitted that the applicant has been closely involved with the building for a number of years and has not taken appropriate steps to address water damage issues himself during that time.

Decision

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

The applicant is seeking an interim order for urgent repayment of costs of the most recent repair to the ceiling. The application raises some serious questions for investigation. These include whether the body corporate is liable for the water damage and whether the applicant has failed to take appropriate steps in the past.

However, the above issues require proper consideration and there seems to be little justification for the immediate grant of an interim order for repayment of the most recent repair costs. The applicants have not put forward any particular solution to the body corporate that owners in general meeting have refused to adopt. The issue of water damage appears to have been recurrent over a number of years and the applicant has not satisfactorily established that urgent interim relief is necessary. It may be that owners will shortly reach agreement between themselves on the relevant issues. Otherwise, submissions from all affected persons can be sought and any necessary investigations can be conducted. Appropriate final orders can be made in due course.

Order

For these reasons, the application for interim orders is dismissed.

The application for final orders will be allowed to proceed to submissions and a final determination in the normal course.