3 Parkland Boulevard [2007] QBCCMCmr 150 (14 March 2007)

Last Updated: 21 March 2007

REFERENCE: 0186-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	33918
Name of Scheme:	3 Parkland Boulevard
Address of Scheme:	3 Parkland Boulevard BRISBANE QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Richard and Yvonne Read, the owner of Lot 3008

I hereby order that the application for an interim order by Richard and Yvonne Read, the owner of Lot 3008 against Philip Ciniglio and Jennifer Gibson, the owner of Lot 3059 to prevent the owner of Lot 3059 from covering the air-conditioning compressor with a louvred box until an adjudicator’s order is made, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0186-2007

"3 Parkland Boulevard" CTS 33918

Application
This application is by Richard and Yvonne Read, the owner of Lot 3008 (applicants) against Philip Ciniglio and Jennifer Gibson, the owner of Lot 3059 (respondents).

The applicants seek a final outcome for the "removal and re-siting of an air-conditioning compressor" subject to body corporate approval. The applicants also sought an interim order "preventing the respondents from covering the air-conditioning compressor with a louvred box until an adjudicator’s order is made".

Jurisdiction
"3 Parkland Boulevard" is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. The commissioner has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application (section 247(3), Act).

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement.

Submissions
In accordance with the Act, submissions were called regarding the interim order application and a copy of the application was provided to the respondents and to the body corporate manager for distribution to the committee. No written submissions were made.

Determination
Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. 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.

The applicants have sought an interim order to prevent the respondents from covering the air-conditioning compressor with a louvred box until the application is finally determined. The primary basis for the interim order seems to relate to advice from Mr Ciniglio (the chairperson) to the committee at its last meeting dated 18 January 2007 that he was planning to proceed with the installation of a louvred box over the air-conditioner’s compressor which is attached to an outer wall and outside the upper balcony line. The applicants claim that the respondents do not have body corporate permission to install the louvred box.

It is apparent that the air-conditioning compressor which is the subject of the final outcome sought was installed in November 2005. I note that the body corporate had previously made an application (Ref. No. 0443-2006) seeking an outcome that the respondents remove the condenser and associated piping from the roof of the balcony and that this application was subsequently withdrawn.

However other than referring to a statement made by Mr Ciniglio at a committee meeting some 2 months ago, the applicants have not provided any grounds to support the view that the circumstances now warrant making the interim order. For example, it is not shown that the respondents have proceeded with the installation contrary to a provision of the Act, the Accommodation Module or a scheme by-law and that an interim order is necessary to preserve the integrity of the matters in dispute pending final determination of the dispute.

The respondents have been made aware of the application and have not made submissions in response to the application for an interim order. While it is uncertain whether the installation of a louvred box is imminent, given the terms of the final outcome being sought, it is a matter (and a possible risk) for the respondents as to whether they proceed with the installation of a louvred box before this dispute is finally determined.

Given that the applicants have not stated any grounds to support the interim outcome being sought or which indicate why an interim order is necessary because of the nature or urgency of the circumstances of the application, the application for an interim order is dismissed. This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.