Park Royal [2007] QBCCMCmr 135 (8 February 2007)

Last Updated: 12 March 2007

REFERENCE: 0002-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	33184
Name of Scheme:	Park Royal
Address of Scheme:	351 Lake Street CAIRNS QLD 4870

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

Michael Pagliaro, the Owner(s) of lot 20

I hereby order that, pending a final determination of the dispute, the owner of Lot 23 should not implement any resolution passed pursuant to motion 10 of the annual general meeting held 19 December 2006. I further order that the application for interim orders is otherwise dismissed. 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 This order will automatically lapse upon a final order being made or this application being withdrawn.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 0002-2007

"Park Royal" CTS 33184

Application

The applicant, Michael Pagliaro, the owner of Lot 20 (the applicant) has sought the following interim order of an adjudicator (quote):

Put on hold Body Corporate approval to Motion 10 installation of a Spa & 11 installation of Storage Cupboard for unit 23 held at the annual general meeting December 2006.

The applicant has also sought the following final orders (quote):

•	Seeking to invalidate and overturn Body Corporate approval to Motion 10 installation of a Spa & 11 installation of Storage Cupboard for unit 23 held at the annual general meeting December 2006.
•	That the Body Corporate not allow the installation of any outdoor spa on the balcony of unit 23.
•	That the Body Corporate not allow the installation of a Storage Cupboard on the balcony of unit 23

Jurisdiction

Park Royal CTS 33184 is a 23 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

Two motions were approved at the annual general meeting of 19 December 2006 as follows:

That the owner of lot 23 be given approval to install a spa on the balcony of the lot. Spa location will be in the north west corner of the balcony... ... seating capacity up to 5 people. All electrical safety requirements have been installed during building of the complex, these in clued, electrical safety cut out switch, balcony rails and door frames earthed, 20 amp power point installed. Building engineers were consulted for safety requirements ...... Exterior of the spa would be in keeping with the complex. Plants will screen the spa, front pillar of building will also partially screen the spa. The spa will be for personal use. Improvements to be done at the owner’s cost.

That the owner of Lot 23 be given approval to install a storage cupboard on the balcony of the lot, cupboard location would be in the south corner of the balcony ...... Cupboard size 750mm deep x 1770 wide to ceiling. Cupboard panel facing the balcony would be of a shutter type in keeping with the complex. Doors would be sliding. Improvements to be done at the owner’s cost.

The applicant provides copies of correspondence he has sent to the Body Corporate. Looking across these documents, his concerns include:

•	Changing the appearance of the complex;
•	Overflow and splashing from the spa;
•	Use of water;
•	Drainage;
•	Noise;
•	Compensation to the applicant should damage occur.

He also includes copies of correspondence in relation to this own efforts to install air-conditioning. This includes offers to screen the unit and the like. It was recently the subject of an adjudication order, requiring relocation of his condenser. The applicant’s original application (later amended), makes allegations of either discrimination or favouritism.

Submissions

In dealing with the interim order stage of this matter, submissions were sought from the committee and the owner of lot 23. The Body Corporate response was received on the letterhead of the body corporate manager as follows:

•	Notice of motions for the installation of a spa and installation of a cupboard were received from the owner of lot 23 prior to the body corporate’s end of financial year as per legislative requirements.;
•	The motions were valid and were accompanied by a floor plan, engineer’s report and specifications for the proposed spa;
•	The meeting notice forwarded to all owners included all documents received;
•	The voting register showed that eleven (11) owners elected to vote on motion 10, 8 voted in favour of the motion, two voted against the motion and one voter abstained;
•	Notice of the motion seeking approval for the storage cupboard was accompanied by a plan showing the proposed location of the cupboard and a description of the cupboard;
•	The voting register showed that eleven (11) owners elected to vote on motion 10, 8 voted in favour of the motion, two voted against the motion and one voter abstained;
•	At the Extraordinary General Meeting held on 01/03/2005, the body corporate approved the installation of sliding doors to the balcony of lot 8 (to form a cupboard, refer to motion 28);
•	At the same meeting, approval was given for the Installation of shutters (refer to motion 13);
•	At the Annual General Meeting held on 20/12/2005 the body corporate approved the installation of a bench to be used to store a fridge and other things for entertaining (refer motion 13 unit 7);
•	The owner of lot 20 has not made any objection to these previously approved Installations;
•	That it is the committee’s view that this application is a personal vendetta against the owner of lot 23, who Is the body corporate secretary, and that it is in response to a successful application by the body corporate committee for the owner of lot 20 to remove an incorrectly installed air conditioner;
•	The proposed spa is within Australian Standards and is portable, not a fixture;
•	Drainage by way of a hose connection with outlet/inlet fitting (feature of spa) into the bathroom of lot 23;
•	A tap was installed on the balcony of lot 23 during construction of the building;
•	The spa will be appropriately insulated in compliance with manufacturer’s recommendations;
•	The visual impact will be minimal and in line with the tropical lifestyle;
•	The owner does not intend to use and/or operate the spa 24 hours a day;
•	An engineer’s report was supplied to the body corporate and omitted from application to the Office of the Commissioner. This was in the Annual General Meeting agenda on page 23;
•	Owner of lot 23 has additional house insurance for the spa;
•	The owner of lot 23 noted that their personal vehicle is parked directly underneath spa location;
•	Owners of 8 of the 11 units who voted in the affirmative at the meeting obviously support the Installation and thus acknowledge that the spa will be used in a proper manner.

The owner of lot 23 says her submission is less detailed than she would have liked, as she had been on holidays and only had a short time to compile it. Her observations are:

•	She is a considerate and helpful neighbour and encloses three references in support of this;

•	The applicant does not live there and therefore has no basis to allege she will run the spa inconsiderately;

•	There was a majority vote and the applicant should accept that;

•	No by-laws or regulations have been breached;

•	The applicant has no made any previous objections at meetings to the installation of the cupboard;

•	The applicant has no right to judge her in advance. She says that in the future if she is breaking by-laws, she will have the spa removed;

•	She says the noise it would produce would be no different to music or talking on the balcony;

•	All safety features and spa requirements were installed during construction. She encloses photos;

•	She says she is happy to comply with the pool regulation hours of 6 a.m. to 9 p.m.;

•	She says the spa would not be as loud as the pump and current waterfall in the pool or people in the pool in the complex or next door;

•	She says she thinks the applicant is retaliating due to the order made against him by this office in a previous matter;

•	She encloses commercially prepared brochures addressing the features of the spa including "rubber mounted pump eliminates vibration and adds to quieter spa operation".

Determination

It is not appropriate for me to consider the substantive issues in this application in detail at this time. But to determine 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. Of particular relevance is evidence that an interim order is necessary to prevent serious or irreparable harm.

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 preliminary evidence tendered includes the opinion of one engineer that the building is capable of supporting the spa. Further evidence suggests that issues of water supply and drainage are adequately addressed. However at this point, I have not received noteworthy evidence in relation to the issue of the noise of the spa motor and the implications of any reverberations from that motor through the slab that forms the ceiling of lots 18, 19 and 20.

It is thorny to say that noise from the spa would definitely drive any tenants on level B out. However, the risk that income could be affected coupled with the chance of wasted costs to the owner of lot 23 strike me as sufficiently significant to be classified as serious harm.

At this point, the prosect of installation of the cupboard does not appear to amount to serious harm in terms of visual impact or cost of removal if that should be determined. However, it would be in the interests of the owner of Lot 23 to bear in mind the potential for removal of the cupboard should that be my final order.

Serious legal question

The applicant’s submissions satisfy me that there is a serious legal question about whether the operation of the spa could in time amount to a noise nuisance in terms of section 167 that interferes unreasonably with the use or enjoyment of another lot in the scheme.

Further, I am interested to receive the submissions of other owners in relation to their views on the implication of sound travelling through slab and what might in their opinion constitute reasonable usage of the spa if noise does penetrate.

I am not persuaded that the cupboard at this point has been sufficiently argued on the basis of a serious legal question, however I will not make interim orders on motion 11, as the cost of rectification would not be significant and is at the risk of lot 23.

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.

If the owner of lot 23 was allowed to install the spa, the owner of lot 23 could face substantial costs thrown away if the applicant was ultimately successful in the claim that the spa is a noise nuisance. Owners with lots in the letting pool could find they face tenancy problems if the noise from the spa is found to be unreasonably intrusive. Less inconvenience would result if I were to grant an interim order preventing the installation of the spa from proceeding pending further evidence in relation to the noise implications of the spa.

I will therefore make an interim order that action under the resolution 10 of the Body Corporate is to be suspended until a final order is made.

At this point, the applicant should bear in mind the challenging burden of proof he is facing. It will not be sufficient to simply say, that in his opinion, there are noise implications from the installation that will interfere with the peaceful use and enjoyment of his lot. Unless he presents suitable evidence from the likes of an acoustic engineer, he may find himself in a position where he will need to wait for the spa to be installed and then may still need the services of an acoustic engineer to establish the noise is above acceptable levels. However, this is something the owner of lot 23 may also wish to bear in mind.

Granting the interim order on the basis of noise potential does not of course preclude further submissions in relation to the visual impact of the spa.