Sailfish Cove [2006] QBCCMCmr 214 (28 April 2006)

Last Updated: 19 December 2006

REFERENCE: 0292-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20394
Name of Scheme:	Sailfish Cove
Address of Scheme:	215 Cottesloe Drive MERMAID WATERS QLD 4218

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

The Body Corporate for Sailfish Cove

I hereby order that the application by the Body Corporate for Sailfish Cove for an interim order enforceable in the Magistrates Court to ensure the safety and peaceful enjoyment of all owners and occupants, which requires that the owner and occupants of lot 209 Sailfish Cove abide by the Body Corporate by-laws – in particular by-law number 5: Obstruction / Nuisance, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0292-2006

"Sailfish Cove" CTS 20394

The applicant, the Body Corporate for Sailfish Cove has sought the following order of an Adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

To receive an interim order which is enforceable in the Magistrates Court to ensure the safety and peaceful enjoyment of all owners and occupants, which requires that the owner and occupants of lot 209 Sailfish Cove abide by the Body Corporate by-laws – in particular by-law number 5: Obstruction / Nuisance ...

The applicant Body Corporate has also sought an interim order, quote:

That the owners / occupants of lot 209 cease nuisance behaviour and excessive noise immediately.

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 dismissed, in circumstances where the urgency relates to the applicant’s desire to resolve or expedite the matter 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 application), 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 nature of the issues raised in this application are not such that they can be effectively addressed or dealt with by way of an interim order. Rather, they require full investigation, including submission from the other party to the dispute, before any order can be made. Moreover, it is readily apparent that the application is seeking to expedite resolution of the dispute by seeking an interim order in terms that will amount to a final resolution of the application. Perhaps if there was a concern for urgency, the applicant might have ensured that the application was received by this office in a more timely fashion. The application is dated 1 April, 2006, but was not received by this office until 21 April 2006, some three week later. In my view, this is not an appropriate application for the making of an interim order, and this application for an interim order is dismissed.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.

I further consider that the application is deficient in significant respects. Section 239 of the Act provides that:

(2) The approved form for the application must provide for each of the following matters to be stated in the form--
(a) the outcome sought by the application;
(b) the name and address of each affected person for the application;
(c) the grounds, in detail, on which the outcome is sought ...

Firstly, the orders sought by the applicant seeks orders against "all owners and occupants" and "the owners / occupants of lot 209". The affected person in part 4 of the application is stated to be "Mrs Lydia Kypreos – owner of lot 209". Records indicate that the sole owner of the lot is a "Lydia Kypreos". Who then are the "all owners" and further, who are the occupants. Adjudicators of this office do not make orders against unnamed parties. The applicant will need to clarify this aspect before this application might proceed.

Secondly, an applicant must provide "the grounds, in detail, on which the outcome is sought". The applicant seeks an order regarding non-compliance with by-law 5. The applicant’s statement of grounds however are nothing more than a chronological list of dates when certain events occurred. The applicant has failed to describe or outline at all the nature of the conduct complained of, and further, how this conduct is alleged to contravene the relevant by-law. The applicant’s statement of grounds will need to be re-submitted to include these and any other relevant aspects. I will not consider this application further until a satisfactory statement of grounds has been provided as part of this application. It is now incumbent on the applicant to provide the materials indicated in this statement of reasons for determination before there will be any further consideration of, or action taken in respect of, this application.