Sainte Maxime [2005] QBCCMCmr 461 (18 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0513-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17859
Name of Scheme:	Sainte Maxime
Address of Scheme:	38 Woodroffe Avenue MAIN BEACH QLD 4217

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

the Body Corporate of the Sainte Maxime Community Titles Scheme:

I hereby order that the application by the Body Corporate for the Sainte Maxime Community Titles Scheme for an interim order restricting the type of use a lot can be used for, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0513-2005

"Sainte Maxime" CTS 17859

The applicant the Sainte Maxime Body Corporate for the Community Titles Scheme seeks the following order of a adjudicator on an interim (and final) basis under the Body Corporate and Community Management Act 1997 (the Act) quote –

To restrict the type of residential use for lots within the scheme which are made available for lease or letting for accommodation purposes whereby lots must be for long term residential purposes only and cannot be made available for short term holiday letting.

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, that 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.

The interim (and final) orders sought by the applicant are effectively to restrict the way an owner may use their lot to long term residential use and not short term holiday letting. In support of this the application mentions By-Law 26 of the community management statement which purportedly imposes limitations on the use of a lot by an owner.

I also note that in the grounds (Part 8) of the application the applicant states:

"The committee is very concerned that one owner now wants to let his unit through an outside letting agency as a holiday unit".

However the application refers to the affected person (in Part 4A) on the application as ‘All Owners’. This inconsistency raises the question of whether this application is seeking in effect a declaratory order.

The applicant has provided brief facts and circumstances with their application however in reading over all of the materials carefully I am unable to see the need for urgent consideration of the matter. I am also concerned that the applicant may be seeking a declaratory order in effect which if is the case mitigates against dealing with the matter by way of a interim order before the full circumstances of the matter can be considered.

I will also make the comment that the parties involved should have the time to respond to the effect of section 180(3) of the Act which prohibits by-laws which place restrictions upon the use of lots by owners of the nature which is contemplated by the current By-Law 26. If By-Law 26 is ultimately found to be in conflict with section 180(3) of the Act then it may be rendered ineffective by a subsequent order.

On this basis I will dismiss the application for an interim order.

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

******