Harbour Cove Marina Resort [2007] QBCCMCmr 237 (27 April 2007)

Number of Scheme:	26191
Name of Scheme:	Harbour Cove Marina Resort
Address of Scheme:	John Lund Drive HOPE ISLAND QLD 4212

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

I hereby order that the body corporate may not allow the commencement of building work on the extensions proposed by Rothmont Projects Pty Ltd in a motion sent to the secretary of the body corporate by letter dated 5^th March 2007 even if that motion is put to, and subsequently passed at, a general meeting of the body corporate.

I further order that this interim order expires when a further interim order is issued, or when the application is finally determined or discontinued, or upon the expiry of 12 months from the date of this order, whichever is the earliest.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0234-2007

"Harbour Cove Marina Resort" CTS 26191

APPLICATION

This is an application dated 14^th March 2007 by Newpalm Pty Ltd (the Applicant) owner of Lot 220 against the body corporate for Harbour Cove Marina Resort (the body corporate) , for an order that "the proposed extensions" are rejected. The Applicant further seeks an interim order to put on hold the proposed extensions if they are approved, pending the final determination of this application.

JURISDICTION

"Harbour Cove Marina Resort" Community Title Scheme 26191 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). There are 106 lots in the scheme, which is a subsidiary scheme consisting of a three-storey hotel development, commercial facilities, and 99 residential lots, created under a Building Format Plan of subdivision.

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

(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 247(3) of the Act allows the Commissioner to refer an application to an adjudicator for consideration for an interim order even though proper notice of the application has not been given to the body corporate or other affected persons, and despite the fact that parties to the application have not been given an opportunity to make a submission about the matters in dispute. It seems to me that the Act allows this process because applications for interim orders often relate to emergency or otherwise urgent circumstances, where it is simply impractical or impossible to allow a period for submissions prior to the consideration of the application for interim orders. It is also relevant that generally the purpose of an interim order is simply to maintain the "status quo" of a situation, and not finally to resolve the matters in dispute.

Section 279(1) of the Act allows an adjudicator to issue an interim order in response to an application "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". Read together with section 247(3), section 279(1) appears to allow an adjudicator to issue an interim order without any reference to other parties to the dispute.

Notwithstanding that the Act allows for interim orders to be issued without reference to other parties, I am of the view that when possible, it is far preferable and more consistent with the principles of natural justice, to allow affected persons to make a submission about an application (even if the time allowed for submissions is necessarily brief) prior to the determination of an application for an interim order.

I therefore sought submissions from the body corporate committee, and from the proposer of the motion for the extensions, Rothmont Projects Pty Ltd (Rothmont), owner of 75 lots in the scheme as follows - Lots 1, 2, 3, 4, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 114, 115, 117, 118, 119, 120, 124, 125, 126, 127, 128, 129, 201, 202, 203, 204, 205, 206, 207, 208, 209, 211, 212, 213, 214, 215, 217, 221, 226, 228, 229, 230, 302, 303, 304, 305, 307, 308, 309, 310, 311, 312, 314, 315, 316, 317, 319, 320, 321, 323, 324, 325, 328, 330, 331, 332, 334, 335, 336 ,337 and 338.

SUBMISSIONS

The Applicant says that the proposed extensions will "block out most of the water views from the only two windows" of unit 220. The Applicants supply photographs showing their view of Hope Harbour and the exterior of the lot, as well as architect’s plans and drawings of the "proposed alterations to Chancellor Hotel, Hope Harbour." The plans are dated December 2006 and January 2007.

Roger Gray and Kim Gray (representatives of the Applicant) met Graham Matthews from Fish Developments and ‘Dale’ who is the building project manager on 5^th March 2007 to discuss the proposed works. Dale said the Applicant’s view would be "substantially affected." The Applicant purchased the unit in 2001.

Attached to the application is a letter dated 5^th March 2007 to the secretary of the body corporate signed by John Fish, representing the owner of Lots 1, 2 and 4 in the scheme. The letter asks the body corporate manager to convene a requested extraordinary general meeting, since owners of at least 25% of lots in the scheme have signed the notice. The owners of Lots 1, 2 and 4 propose a motion for improvements to those lots which affect the common property, being an extension to the hotel lobby, and they want this motion to be put to the extraordinary general meeting.

The requested general meeting has not yet been convened.

Fish Developments made a submission on behalf of Rothmont, the owners of Lots 1, 2 and 4. Graham Matthews, (Mr Matthews) who is chief operations officer for Fish Developments says that Rothmont opposes the interim order and that delays will have a "detrimental impact on future trade of the venue potential revenue to unit owners."

The body corporate committee did not make a submission.

DETERMINATION

In this matter, the Applicants seek an interim order that the proposed extensive renovations and improvements are put on hold, if and when they are approved by the body corporate.

In assessing an interim application, which is in the nature of an injunction, the matters which should be considered are the effect of "holding" up a procedure or activity on the party wishing to perform it; the balance of convenience; whether the proposed action is of an irreversible nature; and whether the applicant has made out a prima facie case in the final order application.

Section 113 of the Accommodation Module states as follows-

(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot
included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the
authorised improvement is not likely to promote a breach of the owner’s
duties as an occupier.

(3) An authorisation may be given under this section on conditions the
body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section2--

(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good
condition, unless excused by the body corporate.

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

Whilst the lot owner wanting to undertake the improvements may make application to the body corporate, he cannot use his lot or the common property in a way which interferes unreasonably with another lot.

The relevant word here is "unreasonably." If the body corporate was to approve the improvements as requested in the motion proposed by Rothmont as owner as Lots 1,2 and 4, (and it seems likely that such improvements could be approved since Rothmont owns 75 lots out of 106), then by passing such a motion, will it "interfere unreasonably" with the Applicants’ lot?

Further, the body corporate is under a duty to act reasonably in anything it does. ( Section 94(2) Act)

The Applicants have not demonstrated any legal reason why the proposed renovations should not go ahead if approved by the body corporate, only that they believe from looking at the plans and from discussions with the building project manager that the views from their windows will be affected for the worse. It is not argued that they will lose light or air. They argue, without much force and with very little evidence for me to go on, that they will lose some of their view. I am not clear how much view they will lose, and perhaps the Applicants are also not clear on this point. They say that Dale, the building project manager, says their view will be "substantially affected." I am not able to say if this means that the enjoyment of the Applicants’ lot will be interfered with unreasonably or whether the view of the water will simply be reduced.

I cannot tell from the photographs if the Applicants have "only two windows" which is what their application says, although from looking at the plans and photographs, there appear to be French windows or glazed sliding doors in the front of the building which are part of the Applicants’ unit. I also have no knowledge, as perhaps the Applicants have not, as to whether the proposed new roofline will interfere with the Applicants’ privacy.

"Dale" was not asked to make a submission but Mr Matthews neither confirms nor denies the extent of the loss of view for the Applicants. Mr Matthews simply says that delay will have a detrimental impact on other lot owners by failing to fulfil the revenue potential of the scheme.
In these circumstances where there may be a severe detrimental affect to the Applicants, and the delay, if any, caused by this application, concerns only maximising potential for revenue for lot owners, and is not affecting something which those lot owners enjoy at present, the balance of convenience favours the Applicants. I cannot at this stage tell whether the Applicants have a good case, but they have made out a prima facie case, such as to trigger this interim order. Once the extensions/renovations go ahead, the cost for Rothmont (or the body corporate) to make alterations or remove the extensions would be extensive, and possibly prohibitive, and the Applicants will by that time have suffered whatever detriment may flow from the works.

In order to maintain the status quo in this matter, I order that the body corporate may not commence building work on the extensions proposed by Rothmont in a motion sent to the secretary of the body corporate by letter dated 5^th March 2007 even if that motion is put to, and subsequently passed at, a general meeting of the body corporate, until final determination of this dispute or until further order.

This matter will now proceed to the stage where submissions are invited from all lot owners on the final order application, that is "a rejection to the proposed extensions." The Applicant then has the opportunity to reply to the submissions prior to a final order being made.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Harbour Cove Marina Resort [2007] QBCCMCmr 237 (27 April 2007)