Brunswick Heights [2006] QBCCMCmr 559 (1 November 2006)

Last Updated: 19 December 2006

REFERENCE: 0792-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2806
Name of Scheme:	Brunswick heights
Address of Scheme:	721 Brunswick Street, NEW FARM, 4005

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

Benjamin Lane, the Owner(s) of lot 2

I hereby order that the application for interim orders restricting the sale of the property until the making of final orders is dismissed. I further order that if the applicant wishes to proceed with the final orders sought under this application, a report of an acoustic engineer will be required in order for the adjudicator to make a final determination. I further order that in addition to the information required to be disclosed under section 206 of the Body Corporate and Community Management Act 1997, the owners of lot 4 are to provide potential buyers with a copy of the application relating to this matter, along with a copy of this order, before the buyer enters into a contract to buy the lot. I further order that the Body Corporate and body corporate manager must ensure that a copy of this application and interim order are held available for inspection by interested persons in accordance with Section 205 of the Body Corporate and Community Management Act 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0792-2006

"Brunswick Heights" CTS 2806

Application

Benjamin Lane, the Owner of lot 2 (the applicant) has sought interim orders that suspends the ability of the owners of Unit 4 (the respondents) to sell their unit until such time as the carpet has been re-laid or the noise level reduced to levels that existed prior to removal of the carpet.

The applicant also seeks final orders that the owners of lot 4 replace the carpet to at least the level of sound dampening that existed in their property prior to the removal of the carpet.

Jurisdiction

Brunswick Heights CTS 2806 is a 6 lot scheme registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997. Typically, this module is intended for residential arrangements.

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)).

Interim order

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. While 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.

Grounds

The applicant advises that while the carpet was lifted around 6 months ago, he was originally very reluctant to create waves in a small complex. However, after 3 months he approached the respondent and raised the issue. The respondent undertook to try and be quieter.

However, after a time the applicant formed the view that there had been no change in the amount of noise coming from the unit and so he started a diary of the noise in order to make his case.

Then, on 22 September he discovered that unit 4 had been listed for sale. He approached the respondents in writing and was asked by the respondents to visit to see if they could negotiate a solution. He declined this opportunity, as he believes the respondents are looking for a compromise, whereas the applicant feels that reinstatement of the carpet is the only possible remedy.

He is concerned that a change in ownership could act to destroy his right to remedial action.

Submissions

Submissions were sought in relation to the interim application. Submissions were received from the owners of Lot 4 and from the body corporate manager enclosing a contravention notice and the respondent’s response to the contravention notice.

The submissions made on the interim order are fairly limited. However, while no specific legal grounds are supplied, the respondents suggest that there is no "ability" in an adjudicator to make such an order. They advise that their real estate agent is alerting potential purchasers to the dispute and that one contract has already fallen over. They say a search of the Body Corporate records will reveal the dispute in any event.

They say that the right of action would remain, even if the lot changed hands. Finally, they suggest that they would prefer a speedy decision in relation to the final orders, so that they can go forward without the dispute complicating the sale of their lot.

Determination

I have considered the inherent urgency in the orders sought.

I am of the view that, as the applicant’s claim relates to the nuisance occasioned by the uncovered floor, the action in nuisance will be available to the applicant against the occupier of lot 4, despite any change in ownership. The interim orders sought are therefore unnecessary and will be dismissed.

However while acknowledging the forthrightness of the respondents to date I will make orders to ensure that potential purchasers are put on notice of the dispute.

After this determination all affected parties may first be invited to attempt conciliation. If successful, this may offer the speedy resolution the respondents seek.

However should this be unsuccessful, I will need the benefit of an acoustical engineer’s report in order to assist in making an objective assessment of the situation. It is appropriate that other owners in the scheme are given the opportunity to express their views and that the applicant is given the opportunity to respond to those submissions. Affected parties include all owners in their personal capacity as well as their capacity as committee members or resident manager.