Biarritz [2007] QBCCMCmr 699 (20 December 2007)

Last Updated: 21 February 2008

REFERENCE: 0937-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10247
Name of Scheme:	Biarritz
Address of Scheme:	85 Old Burleigh Road SURFERS PARADISE QLD 4217

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

Timothy Hall, the Owner(s) of lot 19

I hereby order that, pending a final determination, the body corporate for Biarritz must not take any action to require Timothy Hall, owner of lot 19 (applicant) to remove his pet bird from his lot. 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 This order will automatically lapse upon a final order being made or this application being withdrawn.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 0937-2007

"Biarritz" CTS 10247

Interim Application

Biarritz Community Titles Scheme (Biarritz) is a 97 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application for interim orders. It arises out of an application by Timothy Hall, owner of lot 19 (applicant) against the body corporate for Biarritz (respondent).

Interim Orders Sought

The applicant seeks an interim order to allow him to keep a small bird in his apartment pending a final determination of whether the committee acted unreasonably in refusing to grant him permission to keep the bird. This would operate pending a final determination at which final orders could be considered relating to whether the body corporate should be forced to grant the applicant permission to keep his bird.

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 question to be determined

The applicant says that he keeps a 'quaker' bird in his apartment, that he initially did not realise he needed permission to keep a bird, and that the bird is a small bird that does not cause any nuisance to other occupiers. It is submitted that the committee acted unreasonably in refusing to consent to the applicant keeping the bird.

A submission from the committee is to the effect that the committee is acting in the interests of the vast majority of owners who prefer that no animals or birds be permitted in the building. This submission indicates that the by-laws have recently been changed to absolutely prohibit animals or birds being kept in the building. The previous by-law allowed for animals or birds to be kept by an owner with committee consent.

These submissions satisfy me that, if the matter does proceed to final determination, there are serious questions to be determined regarding:

1.	Whether it was unreasonable for the committee to initially refuse consent for the applicant to keep the bird?
2.	If so, whether it would be unreasonable for the committee to seek to enforce the new by-law against the applicant?

Inconvenience from an interim order

The applicant has established some justification for an interim order allowing him to keep his bird pending a final determination of the dispute.

The applicant indicates that he does not have any family or acquaintances on the Gold Coast who can keep the bird for him. There is no evidence that satisfies me the bird is presently causing any significant nuisance to any occupiers.

In the circumstances, it seems appropriate to grant an interim order preventing the body corporate from taking any action to require the applicant to remove his pet bird 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.