Barcaldine [2007] QBCCMCmr 259 (4 May 2007)

Last Updated: 22 May 2007

REFERENCE: 0348-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17668
Name of Scheme:	Barcaldine
Address of Scheme:	9 Jerdanefield Road St Lucia Qld 4067

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

Lisa Briais, the Owner(s) of lot 4

I hereby order that pending a final determination, the Body Corporate must not proceed with work relating to water leakage into garages covered by the patio areas and planter boxes of units 3 and 4. 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 This order will automatically lapse upon a final order being made or this application being withdrawn.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 0348-2007

"Barcaldine" CTS 17668

Application

Lisa Briais, the owner of Lot 4 (the applicant) has sought the following interim orders against the committee:

That work relating to unit 4 as outlined in the attached memorandum due to commence 8 May 2007 be stopped until a final determination is reached on the outcomes sought..

In addition, the applicant has sought the following final orders:

1. That motion 2 on the attached notice of extraordinary general meeting held on 30 January 2007 be declared invalid due to breach of section 104 (and therefore motion 3 also be declared invalid as it is directly related to motion 2 outcome).

2. That, as determined under motion 2 above, the body corporate is not authorised to close/cover over unit 4 planter box as this work does not fall within the definition of their responsibility of ' maintaining' the roofing membrane. Alternatively, the body corporate should attend to re-sealing/re-waterproofing the planter box under it's maintenance responsibility (as determined in previous adjudicator order 0191-2005 'Barcaldine'), should it be proven that the planter box is leaking.

The Scheme

Barcaldine CTS 17668 was registered as a building unit plan (now termed a building format plan) and is is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the module). It comprises 8 lots.

Jurisdiction

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’s grounds are include concerns relating to the proposed method of remedying a leak in lots 3 and 4, the Body Corporate’s power to interfere with plater boxes and quotes for major expenditure.

Interim Submissions

Interim submissions were sought from the committee, the body corporate manager and the resident unit managers.

The committee advises they sought quotes from 3 companies in relation to the repair work. However they advise the committee only put forward the quote they thought was most suitable to general meeting, after seeking some alterations. They say the process had been difficult due to access restrictions through the applicant’s lot.

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).

Work is scheduled to commence on 8 May 2007, or in other words the next working day. The quote accepted is for a sizable amount and the stoppage of work mid way may present dangers of further water seepage.

The interim orders sought are therefore urgent.

Serious legal question

The application satisfies me that there is a serious legal question about:

• Irregularities in presentation of only one quote to the general meeting for consideration;
• Rights relating to the planter boxes.

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. On this occasion, I consider the inconvenience that will be caused by possibly enabling the work to be stalled half way, or completed without a determination having been made is financially onerous, compared to the wait that the affected parties may need to endure.

I will make order for work not to commence as a precautionary matter.