Ebb Tide [2007] QBCCMCmr 257 (3 May 2007)

Last Updated: 22 May 2007

REFERENCE: 0366-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14632
Name of Scheme:	Ebb Tide
Address of Scheme:	204 Marine Parade Rainbow Bay COOLANGATTA QLD 4225

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

Paul and Maureen Tynan, the Owner(s) of lot 1

I hereby order that the application for interim orders is dismissed. The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0366-2007

"Ebb Tide" CTS 14632

Interim Application

Ebb Tide Community Titles Scheme (Ebb Tide) is a 3 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application for interim orders. It arises out of an application by Paul and Maureen Tynan, owners of lot 1 (applicants) against Helen and Edward Wise, owners of lots 2 and 3 (respondents).

The applicant alleges that work is being performed without a professional inspection, proper quotations or resolution of issues about the owner’s responsibility for the area in question. An interim order is being sought to cease construction work that is alleged to have commenced on 23 April 2007. Final orders are sought to determine a number of matters including whether the area in question is an exclusive use area and who is responsible for performing the work.

Decision

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).

In determining 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. Any evidence that an interim order is necessary to prevent serious or irreparable harm will be significant.

Work already complete

The application was lodged on 1 May 2007. On that day a member of this office contacted one of the respondents to seek a submission in respect of the interim orders sought. The respondent has informed this office that the work involved removal of a brick railing and replacement with a handrail. It was submitted that this work was necessary for safety reasons and has already been completed.

It appears that the work in question was already complete by the date the application was lodged. I am therefore not satisfied it is appropriate to make any interim order. Rather, a final determination can be made in due course relating to the proper allocation of costs and responsibility for the work. Submissions therefore need to be sought and the parties need to address these matters.

Order

For these reasons, the application for an interim order is dismissed.

The application will be allowed to proceed to submissions and a final determination in the normal course.