Glades Easthill North [2005] QBCCMCmr 614 (4 November 2005)

Last Updated: 16 January 2006

REFERENCE: 0763-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32506
Name of Scheme:	Glades Easthill North
Address of Scheme:	237 Easthill Drive, Robina QUEENSLAND 4226

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

David Williams and Nicole Williams, the occupiers of lot 17

I hereby order that the application by David Williams and Nicole Williams, the occupiers of lot 17 for an interim order, that the contravention order (referred to in the minutes of the committee meeting of 6th October 2005, which requires immediate removal of the shed) be held in abeyance until the final determination of this dispute, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0763-2005

"Glades Easthill North" CTS 32506

The applicants, David Williams and Nicole Williams, the occupiers of lot 17, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

That the garden shed situation in the exclusive use are of lot 17 (no. 237) be approved by the committee to be included in the body corporate register of approved external alterations, additions and improvements.
Alternatively, that if the adjudicator decided that the shed in question must be removed then it be allowed to remain until we vacate the premises.

The applicants have also sought the following interim order of an adjudicator, quote:

That an interim order be applied to the dispute between the body corporate and the occupiers of lot 17, to allow the contravention order (referred to in the minutes of the committee meeting of 6^th October 2005, which requires immediate removal of the shed) be held in abeyance until the final determination of this dispute.

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.

The applicants have sought an interim order to allow the contravention order to be held in abeyance until a final determination. I have considered the minutes of the committee meeting held on 6 October 2005 (the meeting). At the meeting it was resolved that the "request from the owners of lot 17 for a shed not be approved"(para 5.4) and that "the body corporate manager forward a continuing contravention notice to the occupier and the lot owner requesting the immediate removal of the shed". Further, that "the body corporate manager be instructed to make application to the commissioner for an order to remove the shed, should the contravention notice not be complied with" (para 7.3). As at the date of the application, the applicants advised that no contravention notice had been received by them in respect of the shed.

I consider that based on the provisions of the minutes, there is no action imminent in respect of the shed other than the possible issue of a contravention notice and a foreshadowed application to this office by the body corporate for the removal of the shed should the notice not be complied with. This application has pre-empted the body corporate’s application in this respect. In the circumstances, I consider that there is no necessity for an interim order given that there is no contravention notice. I suggest to the body corporate committee that there is now no purpose in issuing this notice, and the legality of the shed shall now be determined in the final order to this application. Submissions from interested parties will now be sought. The requested interim order is dismissed on the basis that it is not necessary in the circumstances.