Rosebank [2007] QBCCMCmr 50 (1 February 2007)

Name of Parcel:	Rosebank
Number of Plan:	Group Titles Plan 3033
Address of Parcel:	Rialto Quay, Hope Island Resort, Queensland

TAKE NOTICE that pursuant to an application made under Building Units and Group Titles Act 1980 by Laurence Howes and Jan Howes, the proprietor of Lot 89

I hereby order that the application for an interim order by Laurence Howes and Jan Howes, the proprietor of Lot 89 against Allan Yovich, the proprietor of Lot 40 that Lot 40 not be sold or change hands prior to resolution of the dispute about the air dock attached to the pontoon and located within the secondary thoroughfare at Lot 40 Rosebank Gardens, is dismissed.

STATEMENT OF DELEGATE OF REFEREE’S REASONS FOR DECISION - REF 0079-2007

"ROSEBANK" GTP 3033

APPLICATION
This application is by Laurence Howes and Jan Howes, the proprietor of Lot 89 (the applicants) seeking the following order against Allan Yovich, the proprietor of Lot 40:

That the referee uphold and enforce the Hope Island Resort PBC bylaws 2.04 in respect of private moorings, and order the immediate removal of the Air Dock attached to the pontoon and located within the secondary thoroughfare at Lot 40 Rosebank Gardens, as this is an unapproved structure which fails to comply with Principal Body Corporate bylaw 2.04.1.

Furthermore the Air Dock is in breach of bylaw 2.04.4 part b in that it is not consistent with other moorings used by other proprietors of tidal land.

The applicants have also sought an interim order that the property (lot 40 Rosebank Gardens) not be sold or change hands prior to resolution of this dispute. The property is to be offered for sale by auction on 4^th February 2007.

The applicants’ main submissions are to the effect that:

JURISDICTION

"Rosebank" Group Titles Plan 3033 is a plan for the Integrated Resort Development Act 1987 (the IRD Act). The Building Units and Group Titles Act 1980 (BUGT Act) applies for the operation of the IRD Act (section 5A, BUGT Act) and continues to apply to a group titles plan subject to the IRD Act (section 328, Body Corporate and Community Management Act 1997). Section 179A of the IRD Act provides that "Unless otherwise provided in this Act, a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5".

Part 5 of the BUGT Act concerns disputes. Part 5, division 3 makes provision for orders by a referee. Within division 3, section 77 provides general powers of a referee to make orders. Relevantly, section 77(1) provides a general power for a referee, on application of a proprietor, to "make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel". Section 76(2) provides that "where an applicant for an order under section 77(1) states in his or her application that the applicant requests an interim order, the referee may, if the referee is satisfied on reasonable grounds that, by reason of the urgent circumstances of the case, the referee should do so make, under this subsection, any order that may be made under section 77(1) with respect to the application". Section 76(3) provides that an interim order may be made notwithstanding that any power or duty of the referee under section 73(1) to give written notice of the application to the body corporate and to any affected person has not been exercised or performed with respect to the application.

DETERMINATION

Section 76(2) of the BUGT Act allows a referee to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary by reason of the urgent circumstances of the case. In any consideration of an application which seeks the making of an interim order, it is necessary to determine whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. To assist me in determining whether it is just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I consider it relevant to briefly consider whether the application raises any serious legal question that will need to be determined. If the application raises a serious legal question then it may be appropriate to make an interim order to attempt to preserve the integrity of the matters in dispute pending the final determination.

The applicants’ submissions relate to the enforcement of by-laws made by the PBC. Sections 176 and 179 of the IRD Act provide that the PBC may make development control by-laws and secondary thoroughfare by-laws which have force or effect if approved by the Minister (currently the Minister for Local Government, Planning and Sport) and notified in the gazette. These by-laws bind the PBC, its members and the registered proprietor of a lot within the residential precincts. It would seem that the lots within the Rosebank parcel are within a residential precinct. In this circumstance, the proprietor of each lot is bound by the by-laws.

Even though a proprietor may be bound by a by-law made by the PBC, I consider that given the provisions of the BUGT Act and the IRD Act, it is arguable whether a referee has jurisdiction to resolve a dispute between the proprietors of two lots in a parcel about the enforcement of such a by-law. However, I do not propose to make a determination on this issue until such time as the parties have had the opportunity to make submissions on the application and should it be necessary that a final order be made.

The applicants seek an interim order to prevent Lot 40 being sold as this would result in the new owners of the Lot inheriting an unresolved breach of the by-laws. The applicants are of the view that the owner of Lot 40 has breached PBC by-laws, not only when the air dock was constructed a number of years ago but also when it was replaced some time in the last twelve months. However, the applicants have not raised a serious legal question or established circumstances to warrant the making of the interim order being sought. In addition, the applicants have not provided any persuasive reasons why the sale of the Lot would prejudice the resolution of the claimed breach. If the air dock is attached to the Lot, the owners for the time being of the Lot would be bound by the terms and conditions of any applicable by-laws and any available action will be available against the owner for the time being of the Lot, despite any change in ownership. For these reasons, the interim order is dismissed.

This application will now be administered in accordance with the BUGT Act and will be finally determined in due course. The applicants should note that there will also be a question of jurisdiction under the dispute provisions should it become apparent before a final order is made that Allan Yovich is no longer the proprietor of the Lot. As stated earlier, section 77(1) provides for a dispute to be between the proprietor of a lot and the proprietor of another lot in a parcel. Proprietor is defined in section 7 of the BUGT Act as "the person for the time being registered or entitled to immediate registration under the Land Title Act 1994 as the proprietor of a lot".

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Rosebank [2007] QBCCMCmr 50 (1 February 2007)