Oasis [2007] QBCCMCmr 54 (2 February 2007)

Last Updated: 12 February 2007

REFERENCE: 0060-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Morala Avenue, Runaway Bay QLD 4216

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

Joseph Cutcliffe, an Owner(s) of lot 20

I hereby order that, pending a final determination, the body corporate for Oasis must not permit any person to paint Villa 16 located on lot 20 within the scheme. 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 This order will automatically lapse upon a final order being made or this application being withdrawn.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 0060-2007

"Oasis" CTS 20870

Interim Application

Oasis Community Titles Scheme (Oasis) is a 76 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). Lot boundaries are designated under a group titles plan (now known as a standard format plan).

This is an application for interim orders. It arises out of an application by Joseph Cutcliffe, owner of lot 20 (applicant) against the body corporate for Oasis community titles scheme (respondent).

Interim Orders Sought

The applicant seeks an interim order to stop the body corporate from entering his property and carrying out painting without permission. This would operate pending a final determination at which final orders could be considered relating to whether the body corporate or the owner should be responsible for the painting.

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.

Serious legal question

I am satisfied that the applicant has raised a serious question for determination. Typically owners of lots registered under a standard format plan are responsible for the painting of walls that are within the boundaries of their lot and therefore fall within responsibilities of maintenance of the person’s own lot (Standard Module, 120).

The chairperson has made a submission to the effect that there are problems with shared gutters, fascias, sails, fences, entrances and walls. It is also submitted that it is necessary to access the property from the neighbouring property possibly causing insurance and workplace health and safety issues. It is therefore submitted that the body corporate should perform the painting.

By-law 28 also seems relevant to this question to the extent that it appears to allocate some painting responsibilities to the body corporate and other responsibilities to the lot owner.

These matters will all need to be considered prior to a final determination.

Inconvenience from an interim order

The applicant has established some justification for an interim order prohibiting painting of his villa pending a final determination of the dispute. Submissions on behalf of the body corporate do not express any reason why any decision about the painting of the villa cannot be postponed for the time being.

In the circumstances, it seems appropriate to grant an interim order to the effect that the body corporate for Oasis must not permit any person to paint Villa 16 pending a final determination of the dispute.

Order

For these reasons, I make the interim order above.

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