Glades Easthill North [2006] QBCCMCmr 273 (30 May 2006)

Last Updated: 19 December 2006

REFERENCE: 0318-2006

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:	Easthill Drive ROBINA QLD 4226

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

David Huddy, the Owner(s) of lot 80

I hereby order that, pending a final determination, the body corporate for Glades Easthill North must not take any action to alter or authorise the alteration of parking facilities at the scheme. This is unless the body corporate first sends owners written notice of a resolution that authorises the alteration of the parking facilities and any action is only taken at least two weeks after that notice has been sent. This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0318-2006

"Glades Easthill North" CTS 32506

Interim Application

Glades Easthill North Community Titles Scheme (Glades Easthill North) is an 80 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application for interim orders. It arises out of an application by David Huddy, an owner of lot 28 (applicant) against the body corporate for Glades Easthill North (respondent).

The applicant alleges that the committee are proposing to enter into an agreement with Sunland Group (developer) to increase parking spaces in one area of the scheme from four spaces to six spaces. It is alleged that this proposal has not been mentioned in minutes of committee meetings or communicated to owners in any other way.

Interim Orders Sought

The applicant seeks an interim order to direct the committee to cease all actions and negotiations in relation to the proposed changes to the parking facilities unless or until owners approve the proposal.

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).

In determining whether it is just and equitable to grant interim relief it is relevant to briefly consider whether the application raises any serious questions for final determination.

It is also relevant to consider whether any inconvenience likely to result from the interim order is outweighed by the potential detriment alleged in the application. In particular, to consider whether an interim order is necessary to prevent actions that cannot easily be redressed by final orders.

Serious legal question

The applicant refers to a letter dated 8 February 2006 from the developer to the body corporate and a letter dated 31 March 2006 from the body corporate to Sunland. The relevant parts of the first letter state that the developer understands that the body corporate wishes to change five parallel car parks into eleven perpendicular car parks, that the developer does not consider this work to be its responsibility, but that the developer will provide the body corporate with $2,640 towards these works. This is said to be sufficient to amend two parallel car parks into four perpendicular car parks. In the second letter the chairperson indicates discussions have occurred and that the body corporate would accept the developer’s offer of $2,640 towards car park changes together with an offer from the developer to remove trees from within the designated area.

Submissions from the committee are to the effect that the committee has not resolved to alter common property and has not received any moneys from the developer but has merely sought and received a commitment from the developer to assist financially towards any future proposal. It is submitted that the committee had no intention other than to forward all relevant information to all owners for consideration at a general meeting when all aspects of the exercise had been covered.

On the other hand, submissions from the developer are to the effect that the letter of 31 March 2006 accepted an offer made by the developer on 8 February 2006. Submissions are to the effect that the developer has commenced and partially completed works pursuant to this agreement and that the developer intends to complete and honour its obligations pursuant to the agreement. It is submitted that the committee has power to enter into an agreement of this nature and that the developer, honestly and without notice of an irregularity, entered into the agreement with a person who has the power and authority to bind the body corporate. It is therefore submitted that the agreement is valid and binding as a result of section 310 of the Act.

These submissions satisfy me that, if the matter does proceed to final determination, there is a serious legal question to be determined regarding possible changes to the parking facilities. In particular, questions arise regarding whether the body corporate has a valid agreement with the developer despite alleged failures to comply with the legislation. This may include questions of whether the agreement as a whole was limited to matters that could properly be authorised by the committee or whether the committee was restricted from entering into the claimed agreement because it purported to change rights, privileges or obligations of owners (Accommodation Module, 24).

Even if there is a binding agreement between the body corporate and the developer, questions arise about whether the agreement itself authorises changes to the car parks or only provides that the developer give money towards possible future changes to the car parks.

Inconvenience from an interim order

The applicant has established some justification for an interim order prohibiting any work pending a final determination of the dispute.

However, it is possible that the applicant will not succeed in establishing any contravention of the legislation and it would be inconvenient for the body corporate to be subject to an interim order prohibiting the work if owners wanted the work to proceed.

It is also possible that, during the time this application is awaiting determination, owners or the committee may wish to pass valid resolutions to correct any actual or perceived irregularities that were raised in the application. I consider it appropriate that an interim order allows this to occur. However, as the issue is contentious, it seems appropriate that the body corporate not take any action until at least two weeks after notice of any subsequent resolution is sent to owners so that there is a fair opportunity for owners to raise any further challenges before any work commences.

In the circumstances, it seems appropriate to grant an interim order preventing any action to alter the parking facilities subject to the order allowing for the possibility that the dispute may be resolved by subsequent resolutions passed by the body corporate.

Order

For these reasons, I make the interim order above.

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