Federation Court [2005] QBCCMCmr 583 (20 October 2005)

Last Updated: 19 July 2006

REFERENCE: 0641-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19618
Name of Scheme:	Federation Court
Address of Scheme:	32 Government Road LABRADOR QLD 4215

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

George Miller, an Owner(s) of lot 6

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 0641-2005

"Federation Court" CTS 19618

Interim Application

Federation Court Community Titles Scheme (Federation Court) is a 6 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). Lot boundaries are designated under a group title plan (now known as a standard format plan).

This is an application for interim orders. It arises out of an application by George Miller, an owner of lot 6 (applicant) seeking orders against Norma Guthrie, the owner of lot 5. The applicant says that the antenna attached to his roof originally serviced both lots 5 and 6 but that the owner of lot 5 subsequently attached their own antenna to the pole. The applicant complains that this second antenna interferes with his reception and seeks orders that either the owner of lot 4 remove her antenna and utilise the original antenna or that the applicant erect her own antenna on her own roof (respondent).

Interim Orders Sought

The interim order sought by the applicant is that the owner of lot 5 not permit any person to enter upon his roof or in his ceiling pending final orders

Decision

Interim injunctive relief

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 application raises questions about whether the aerial and pole form common property utility infrastructure of the scheme that must be maintained by the body corporate. If the pole or aerial is common property of the body corporate questions are raised regarding whether someone has damaged the pole and may be required to compensate the body corporate.

The owner of lot 5 has said that she agrees the pole needs replacing and would be prepared to meet half the cost. However, she denies that she has had any work done to the pole or that it needed to be cut to allow her aerial to be attached. She also says that she has no intention of arranging a contractor, or anyone, to enter upon the roof of lot 6 or into the ceiling without prior arrangements.

The applicant has not established any likelihood that the respondent will cause anyone to go onto the applicants’ roof or into the ceiling and, in light of the above statement from the owner of lot 5, I do not consider any interim orders are justified. Rather, it would seem to be preferable if the owners of both lots come to some agreement on what to do about the antennas and proceed to implement that agreement.

It is certainly arguable that any second aerial installed by lot 5 within the boundaries of lot 6 and on a common aerial pole would require the permission of both the owner of lot 6 and the body corporate. Otherwise, the obvious choices are for both parties to either use the original aerial installed by the developer or to install their own aerials on their own lots. If the original aerial require repairs then this would ordinarily be the responsibility of the body corporate and all owners will therefore contribute to that cost. If owners install their own aerials then each owner will have the responsibility to maintain their own aerial.

This matter appears to be one which the parties should be able to resolve themselves by agreement and by putting any necessary resolutions before the body corporate. If the parties are unable to resolve the matter then all owners will be given the opportunity to make a submission and a final determination will be made.

Order

The applicant has not established that the owner of lot 5 is likely to make any changes to the aerials located on his roof without his consent. Therefore, I do not consider there is any need for the interim order sought.

I would encourage the parties to attempt to agree on an appropriate resolution of this matter as quickly as possible. Otherwise, submissions can be sought from all owners and a final determination can be made in the normal course.