Kensington Gardens Retirement Village [2006] QBCCMCmr 34 (27 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0030-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30198
Name of Scheme:	Kensington Gardens Retirement Village
Address of Scheme:	45 Glen Kyle Drive BUDERIM QLD 4556

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

Carole Suzanne Livingston-Cohen, the owner of lot 20

I hereby order that the application by Carole Suzanne Livingston-Cohen, the owner of lot 20, for an interim order that until the matter of funding is determined, all work on the installation of a new TV Antenna cease and that the committee be directed to fund this project by a levy on the residents who will benefit from the antenna, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0030-2006

"Kensington Gardens Retirement Village" CTS 30198

The applicant, Carole Suzanne Livingston-Cohen, the owner of lot 20, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

The funding of unbudgeted new capital work from the sinking fund would lead to a shortfall in these funds in the future. I therefore ask that the committee be directed to fund this project by a levy on the 69 residents who will benefit from the installation of the new antenna.

The applicant has also sought the following interim order of an adjudicator:

That until the matter of funding is determined, all work on the installation of a new TV
Antenna cease. As the installation of a new antenna system will only benefit 69 of the 80 residents in the village I ask that the committee be directed to fund this project by a levy on the residents who will benefit from the antenna.

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.

The scheme is a subdivision of 80 lots. The regulation module applying to the scheme is the standard module.

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 applicant has sought an interim order that all work on the installation of the new TV Antenna cease until the matter of funding is determined. The applicant alleges that the committee resolved on 11 November 2005 to spend $10,000 "for the installation of a new TV antenna for the village". The applicant further alleges that the proposal is to be funded as "an item of repair not as new capital works and the money come from the sinking fund". The applicant believes that "this project is an item of new works that only provides a service to 69 of the 80 units and as such should be funded by a levy on those 69 residents only. Unfortunately, the applicant failed to elaborate the basis of her belief in this regard, or provide any evidence whatsoever in support of this allegation.

Finally, the applicant contends that if the spending from the sinking fund is made "it will in the future leave the sinking fund below the amount forecast for repairs and maintenance and as such should not be allowed to proceed in the manner proposed".

The body corporate committee were invited to respond to the application for an interim order. At this stage, it should be noted that I am considering only the terms of the interim order. The body corporate submission notes "some anomalies within (the applicant’s) submission". In particular, the committee points out that the project will be funded from the administrative fund and not the sinking fund. The committee further states that, at the relevant meeting, it agreed to "proceed with a program to update and repair the existing communal antenna system following many complaints from residents of constant poor reception within the village".

Further, the committee submission notes that the:

• The expenditure is within the committee’s expenditure limit;
• The committee did not receive a notice of opposition;
• The applicant "has not (made) any attempt to question or clarify the try situation".

In the circumstances, I intend to dismiss the application for an interim order. The applicant has failed to outline a prima facie case, or even to provide evidence on relevant aspects. In particular, why the project relates to only 69 of the 80 lots. Moreover, the allegation of "new work" rather than repair is challenged. The committee’s material suggests that the reason for the work is poor reception generally in the complex. This suggests that the work is both maintenance, and secondly, that it is generally for the benefit of all owners, and not a particular group of those owners. Further, it is clear that the work is being funded from administrative fund monies and not the sinking fund as alleged.

Whilst I will reconsider these aspects in my final determination, I consider that at this time, there is no basis to order in terms as sought. The application for an interim order is therefore dismissed. Submissions will now be sought on the application from all owners and the body corporate.