Heussler Gardens [2005] QBCCMCmr 643 (17 November 2005)

Last Updated: 16 January 2006

REFERENCE: 0794-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17032
Name of Scheme:	Heussler Gardens
Address of Scheme:	67 Heussler Terrace MILTON QLD 4064

TAKE NOTICE that pursuant to an application made under the abovementioned Act by John Auer, a co-owner of Lot 8

I hereby order that pending a final determination of this application, the Body Corporate for Heussler Gardens Community Titles Scheme 17032 (including through its Committee) shall not proceed with, implement or otherwise act upon the resolution made on Motion 2 at the Extraordinary General Meeting held on 21 October 2005. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0794-2005

"Heussler Gardens" CTS 17032

APPLICATION

This application is by John Auer, a co-owner of Lot 8 (applicant) against the body corporate (respondent) seeking a final outcome to void Motion 2 of the Extraordinary General Meeting dated 21 October 2005 (EGM). The applicant has also sought an interim order that the resolution on Motion 2 at the EGM not be implemented until a final order is made.

JURISDICTION

"Heussler Gardens" Community Titles Scheme 17032 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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)).

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management (Commissioner) has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. The Commissioner has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application (section 247(3)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. 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.

SUBMISSIONS

The applicant claims that:

• Motion 2 at the EGM does not disclose all the proposed work, including the improvements to some exclusive use areas. The quote accepted by the body corporate includes excavation work to some car spaces which will improve the space, and this cost of this work should be met by the benefiting lot owner.
• The common property driveway does require maintenance; however the car spaces do not need resurfacing.
• The maintenance of the exclusive use car spaces should be at the expense of the lot owners who have the benefit of exclusive use.

In accordance with section 243 of the Act, submissions were invited from the committee and a copy of the application was provided to the body corporate manager for distribution to committee members. A submission was received from the committee.

Submissions on behalf of the body corporate committee can be summarised as:

• While the car spaces are allocated as exclusive use, occupiers use the spaces "in a friendly and cooperative manner".
• The car spaces require maintenance as some damage has occurred, and having the driveway and car spaces resurfaced at the same time will "maintain an aesthetically pleasing exterior".
• Car spaces are proposed to be excavated to level the spaces and to provide sufficient head clearance. The current height of the spaces does not comply with the Building Code of Australia, and the body corporate is concerned about the possibility of litigation.

DETERMINATION

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 to the effect that Motion 2 at the EGM not be implemented until the dispute is finally resolved. Given that the resolution on the Motion approved the carrying out of work by the body corporate which is disputed by the applicant, I am satisfied that there are reasonable grounds to make an interim order.

To assist me in determining whether it is just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I consider it relevant for me to briefly consider whether the application raises any serious legal question that will need to be determined. If the application raises a serious legal question then it may be appropriate to make an interim order to attempt to preserve the integrity of the situation pending the final determination. It is relevant to consider whether the likely inconvenience should no interim order be granted outweighs any inconvenience likely to result from the interim order. In particular, it is relevant to consider whether an interim order is necessary to prevent something occurring that cannot be adequately redressed by final orders.

The Minutes of the EGM indicate that Motion 2 was a motion with alternatives and that the body corporate resolved, by 8 votes to nil to accept the quotation from Ash Industries to resurface the car park and driveway and for the cost of the work to be paid from the sinking fund.

The plan of subdivision (BUP 102640) was registered on 7 June 1995 by the Registrar of Titles, Department of Natural Resources and Mines. Subsequent to the registration of the plan, the body corporate approved and registered three changes of by-laws in September and December 1995. The changes of by-laws related to allocating parts of the common property as exclusive use to lots included in the scheme. The registered by-laws:

1. Allocated a part of common property for the exclusive use of the owner or occupier of Lots 1 and 2, and 4 to 9.
2. Include conditions that the owner of the Lot with the exclusive use entitlement "shall not litter...create a nuisance or obstruction and shall be responsible at his/her expense for the performance of the duties of the body corporate under section 37(1)(c)(i) in respect of such part of the common property to which this By-Law applies".

At the time of the registration of the By-Laws, the Building Units and Group Titles Act 1980 (BUGTA) applied to the body corporate. Section 37(1)(c) of BUGTA states, quote:

37 Duties and powers of body corporate regarding property etc.

(1) A body corporate shall--

(c) subject to section 37A, properly maintain and keep in a state of good and serviceable repair (including, where reasonably necessary, renew or replace the whole or part thereof)--

(i) the common property

At the time of the making of the exclusive use By-Laws, the body corporate could impose conditions of this nature^[1]. With the commencement of the Act in 1997, these By-Laws continue to be included as By-Laws for the scheme^[2]. Section 123 of the Standard Module makes provision for the imposition of conditions in an exclusive use by-law. It is a function of the body corporate to enforce any by-laws for the scheme^[3]. While the body corporate has submitted that the exclusive use areas are informally shared between occupiers, the By-Laws apply and must be enforced.

While the body corporate has provided documentation that clearly indicates that it has disclosed to lot owners the proposal to resurface the common property, and has examined the issue carefully, the applicant has, even though he may have not participated in the decision making process, raised the question of the responsibility for the maintenance of the exclusive use areas, and this is a point requiring further consideration given the conditions imposed by the body corporate when the relevant By-Laws were made. Also requiring further consideration are factors such as the need to maintain the exclusive use areas, the reasonableness of maintaining both the driveway and the car spaces at the same time and the body corporate’s responsibility to carry out the approved excavation work given the conditions imposed in the By-Laws. I also note that 2 of the 10 lots in the scheme do not have the benefit of exclusive use of an identified part of the common property. The applicant is a member of the body corporate who is liable to contribute to the expense approved by the body corporate, and is entitled to question the resolution on Motion 2.

While it is clear from the photographs provided by the body corporate that there are parts of the common property driveway which require maintenance, I am of the view that legal questions have been raised to warrant the making of the interim order. Given that the accepted quotation from Ash Industries dated 20 August 2005 includes resurfacing of the common property driveway, exclusive use areas, and the excavation of car bays under the building, I am of the opinion that the likely inconvenience should no interim order be granted outweighs any inconvenience likely to result from the interim order.

For these reasons, I have made the interim order sought by the applicant. This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.

^[1] Section 30, BUGTA.
^[2] Section 339(5), Act.
^[3] Section 94, Act.