Brighton on Broadwater Shores [2007] QBCCMCmr 299 (22 May 2007)

Last Updated: 29 June 2007

Body Corporate and Community Management Act 1997 Office of the Commissioner for Body Corporate & Community Management Reference:0099A-2007

BETWEEN:

Applicant: BRIGHTON on Broadwater Shores Community Titles Scheme 34496

And

Respondent: Karimbla Properties (No3) Pty Ltd



Body Corporate Brighton on Broadwater Shores and Karimbla Properties (No.3) Pty Ltd

Dispute resolution application reference 0099A-2007 Brighton on Broadwater Shores

Before: Specialist Adjudicator Mr P. J. Favell

Date of Decision: 22 May 2007

Initiating document: Dispute Resolution Application dated 1.2.07

DECISION AND ORDER

1. I have been appointed as a specialist adjudicator in this dispute which has been determined as falling within the definition of a contractual matter and as such must be determined by a specialist adjudicator.

2. The applicant Brighton on Broadwater Shores Community Title Scheme 34496 as the body corporate sought two orders:

i.

A declaration that the arbitration provision in the caretaking agreement is void or invalid because of the effect of the enactment of the Body Corporate and Community Management Act (QLD) 1997; and

ii.

An injunction, including an interlocutory injunction, that Karimbla Properties (No3) Pty Ltd by its servants, agents or otherwise be restrained from proceeding with an arbitration before Mr Wayne Cochrane, or any other party in relation to a dispute that arises in respect of a determination of the salary payable by the body corporate to Karimbla properties (No.3) Pty Ltd for the period commencing on and from 6 October 2006 to 5 October 2007.

3. The applicant sought interim orders namely:-

i.

An interlocutory injunction, that Karimbla Properties (No.3) Pty Ltd by servants, agents or otherwise be restrained from proceeding with an arbitration before Mr Wayne Cochrane, or any other party in relation to a dispute that arises in respect of a determination of the salary payable by the body corporate to Karimbla properties (No.3) Pty Ltd for the period commencing on and from 6 October 2006 to 5 October 2007.

ii.

Such further or other interim orders as the adjudicator considers necessary to give effect to the application.

4. After receiving the Application I asked to Solicitors for the respondent if the respondent sought to make submissions. That gave rise to correspondence between the Solicitors for the applicant and the Solicitors for the respondent which resulted in the Solicitors for the respondent filing a letter dated 5 March 2007 in which the following undertaking was given:

"Karimbla Properties (No.3) P/L undertakes not to proceed with arbitration for determination of caretaker’s remuneration for the period 6 October 2006 to 5 October 2007."

5. Given the undertaking I was satisfied I should make an interim order that Karimbla Properties (No3) Pty Ltd by its servants agents or otherwise be restrained from proceeding until any arbitration for determinations of the caretakers remuneration for the period 6 October 2006 to 5 October 2007 until further order.
6. Further given the undertaking I adjourned the application for any further or final orders to a date to be fixed on the giving of 7 days notice by any party.
7. In the circumstances it was not necessary for me to decide further the questions raised in this application.
8. On 5 March I published that decision and the reasons and made the orders sought. I now make those orders final in so far as they were not final.
9. I have received submissions from both sides about costs.
10. The solicitors for the Applicant sought an order that the respondent pay the costs of the application because the application should not have been necessary and the respondent was on notice that any attempted arbitration of the dispute would be challenged by the applicant. I am satisfied that is correct. I am also satisfied that the dispute was one that should have been started as an application under the BCCM Act. The respondent in their submissions on costs indicate that the issue of Karimbla’s caretaking remuneration is still very much a live issue and an application for a review will be made.
11. The solicitors for the respondent contend that I should not exercise my discretion to make a costs order other than the usual order under s280(2) of the BCCM Act because a undertaking that it would not proceed with the arbitration was given on 5 March 2007. By that time an application had been made and I had considered the matter.

12. In the circumstances I am satisfied that it is appropriate that I make a costs order that the respondent pay the adjudicators cost. In the event that any of the adjudicators costs have already been paid by the applicant I order that the respondent reimburse the applicant for those costs. I make those orders.

_______________________________
Paul Joseph Favell
Specialist Adjudicator

I certify that this is a true copy of my orders and decision in application number __0099A-2007 ___________.

______________________________Paul Joseph Favell
Specialist Adjudicator