Maria Creek Estate [2006] QBCCMCmr 11 (5 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0846-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	QUEENSLAND

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

Peter and Marcia Hablethwaite, the Owner(s) of lots 3, 6, 7, 8, 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 0846-2005

"Maria Creek Estate" CTS 25253

Interim Application

Maria Creek Community Titles Scheme (Maria Creek) is a 9 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This is an application for interim orders. It arises out of an application by Peter and Marcia Hablethwaite, owners of lots 3, 6, 7, 8, and 9 (applicants) seeking orders against the body corporate for Maria Creek (respondent).

Three motions proposed by the applicants were withdrawn from consideration of owners at a general meeting. These motions concerned a proposal to erect a chain across the estate entrance, a proposal to relocate palms away from utility services, and a proposal that certain matters be restricted issues for the committee and be reserved for decision by owners in general meeting. The dispute concerns whether those motions should have been considered at the meeting and, in fact, passed on the majority vote of the applicants.

Interim Orders Sought

The applicants seek an interim order that a temporary chain be erected across the estate entrance pending a final resolution of the dispute. The applicants say that a number of trespasses have been coming into the estate and also seek an order that the owners of lot 5, who are advertising their house for sale, require that inspections be by appointment only. The applicants say that trespassers are passing their home that has a garage and workshop open to the roadway. They also submit that a house they are constructing on lot 6 is being placed at risk of damage and/or looting.

Peter Clark, an administrator for the body corporate appointed by order of an adjudicator dated 22 July 2005 (administrator), has provided a response on behalf of the body corporate. The administrator says that he has not had any complaints from other owners about trespassers. He also says that no part of the improvements on the applicants’ property is easily observable from the road through the scheme. The administrator makes submissions to the effect that he does not accept the applicants concerns but, if there is a problem, the applicants should secure their garage and shed rather than require a chain across the entrance to the scheme. It is also submitted that the issue of a chain across the entranceway has previously been the subject of an order by an adjudicator and conditions set down in that order have not been fulfilled.

Decision

Urgent interim 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 applicant is seeking an interim order to require the temporary installation of a chain across the entrance to the scheme and require any inspections of lot 5 pending its sale to be by appointment only. 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.

If the application raises a serious legal question then it may be appropriate to grant interim orders 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.

Serious legal question

The applicant’s submissions satisfy me that there is a serious legal question about whether the motions they put forward for the general meeting should have been withdrawn.

A letter from the applicants to the administrator dated 11 October 2005 states "It is obvious, as chairman, you will abort our motions so we hereby withdraw our request for the meeting".

The administrator makes submissions to the effect that he was not provided with a copy of this letter until after the meeting had been called and, as other motions required consideration by owners in general meeting, he allowed the meeting to proceed and simply treated the motions put forward by the applicants as having been withdrawn.

However, some questions arise as to whether the letter of 11 October 2005 does constitute a valid withdrawal of the motions. In particular, this letter predates the calling of the meeting and the withdrawal of the request for the meeting appears equivocal particularly given it refers to the meeting rather than the motions and given the applicants subsequently submitted their votes in favour of the motions.

Inconvenience from an interim order

In considering whether to grant the interim order sought, it is relevant to balance the inconvenience caused by an interim order against inconvenience caused by waiting until a final determination to grant any necessary orders.

On balance, the applicants have not satisfied me that it is necessary to make an interim order to require a chain across the entrance of the scheme or otherwise restrict access to the scheme pending a final determination.

The administrator has alluded to a previous order of an adjudicator that dealt with the issue of a chain across the entrance way and it may be arguable that it would be unreasonable for the body corporate to install a chain rather than an entrance gate. Further, there is dispute over the extent of any trespassing and an argument that the applicants should secure their own property rather than seek a chain across the entrance to the scheme or otherwise limit inspections of lot 5 which is advertised for sale.

The evidence provided by the applicants does not satisfy me that urgent steps to install a chain need to be taken, particularly when the applicants can presumably take other steps to secure their property. I consider that submissions should be sought from other owners and a final determination can be made in due course. The interim relief sought will therefore be refused.

Order

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

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