Admiralty Quays [2008] QBCCMCmr 279 (14 August 2008)

Number of Scheme:	24592
Name of Scheme:	Admiralty Quays
Address of Scheme:	32 Macrossan Street BRISBANE QLD 4000

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

I hereby order that the application for the following interim order:

We wish to have an order placed on the Body Corporate to prevent the lodgement of the new by-law passed as a special resolution under motion 4 at the extraordinary general meeting on 31/07/2008, until a conciliation meeting takes place and a conciliation agreement is reached.

is dismissed.

Admiralty Quays community titles scheme 24592 (Admiralty Quays) consists of 173 lots and common property. The Community Management Statement (CMS) for Admiralty Quays indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources Mines and Water records show the scheme is registered as Building Units Plan 106738.

This is an application for interim orders lodged by James Moran, Co-owner of Lot 161 (applicant) on 1 August 2008 under the Body Corporate and Community Management Act 1997 (Act).

The applicants sought interim orders against the Body Corporate for Admiralty Quays (respondent) in the following terms:

A copy of the meeting motions is attached. The wording of the by-law is under motion 4.

We are also asking that the full turning area which was originally available (as common property) be fully and permanently restored.

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order. The Commissioner has referred the application notwithstanding that affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application[1].

In the circumstances I provided the Body Corporate Committee with a limited opportunity to make submissions in response to the interim application. A submission was made by the Body Corporate Chairperson in due course.

This application relates to the storage of bicycles in the common property car park. From the material provided by the parties, the circumstances of the dispute can be summarised as follows.

At an Extraordinary General Meeting (EGM) on 31 July 2008 the Body Corporate passed Motion 4 as a special resolution with 54 votes in favour, 1 against and 14 abstentions. The motion approved an amendment to the by-laws by the inclusion and registration in a new CMS of a new by-law as follows: “Bikes – no bikes are to be in the lifts of the foyer area, and must be stored in owners’ storerooms or the designated racks on level P1.”

Currently bicycles are parked on one level of the common property car park. They are parked against the wall on one side of the driveway and turning area. The applicant has two car spaces and storage space opposite part of the bicycle parking area.

The applicant wrote to the Secretary on 14 March 2007 expressing concern about bicycle parking. The letter comments that the original decision to narrow the driveway to allow bicycle storage was probably expected to have minimal impact on the car spaces opposite and that when he first purchased the lot in 2005 a single line of neatly parked bicycles along the security rail caused only minimal inconvenience. However he said the number of bicycles had increased significantly, were frequently four deep, and took up to 22% of the turning space causing difficulty in parking in their allocated spaces. The Committee did not respond.

The applicant says that since writing the letter he has tried to negotiate with the Body Corporate to remove the relevant section of the bicycle storage area to enable easier access to their car spaces. He says he spoke to the previous and current building manager on numerous occasions to no avail. He claims bicycle parking now extends up to 1.4 meters into the 6 metres driveway.

The applicant says he was unaware that a motion was to be listed at the EGM until he received notification of the meeting, and was surprised by it given the concerns he had raised. On 23 July 2008 he wrote to the Body Corporate Manager (BCM) referring to the agenda item and the concerns with the matter as outlined in the previous letter, which was attached. At the meeting he requested that the words ‘on level P1’ be removed but that was refused. He objects to the reference to ‘on level 1’ because he says the confirmation of the current bike storage in the CMS conflicts with the original concept of the scheme and By-law 3 regarding obstructions.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2]

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 claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances.

At this time, I am concerned with the application for an interim order and the threshold issue of whether interim orders are warranted. 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.[5] Any order granted must be just and equitable in the circumstances.[6] The examples in section 279 of the Act indicate the usual circumstances where an interim order might be made and are in the nature of injunctive relief. While it is not possible to define the range of matters that might be the subject of an interim order, an applicant needs to establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency relates to an applicant’s desire to expedite the matter, or where the matter is not capable of being dealt with in the context of an interim order.

It is not appropriate to consider the substantive issues in the application in detail at this time. But to determine whether it is just and equitable to grant interim relief, it can be relevant to briefly consider the issues raised in the application. As an interim order can be considered on an ex parte basis, an adjudicator must be satisfied that the application raises serious legal questions and that the balance of convenience between the parties justifies injunctive relief. That is, an adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted. Of particular relevance is evidence that an interim order is necessary to prevent serious or irreparable harm.

The applicant seeks to alter the wording of the by-law purportedly passed at the EGM in July 2008. There are several grounds upon which an order invalidating or altering the purported consent to a by-law could potentially be made, including if the process of approving the by-law was flawed, or the by-law itself was invalid, or the by-law was oppressive and unreasonable, or that it was unreasonable for the Body Corporate to approve the by-laws. The applicant is not specific as to the legal grounds supporting his application.

The applicant has not suggested that there was defect in the conduct of the EGM or requirements for approving a new CMS[7], and none is immediately obvious. The applicant has not suggested that the subject matter of the by-law is contrary to the legislative provisions regarding the content and extent of by-laws in section 169 of the Act or any of the limitations for by-laws in section 180 of the Act. Again, it is not immediately apparent that the by-law is contrary to those provisions. Accordingly, the only issues here appear to be whether the proposed by-law itself could be oppressive or unreasonable[8] having regard to the interests of all owners, or that it would be unreasonable for the Body Corporate to make a decision approving such a by-law[9].
In the absence of any clear argument from the applicant, but without making any final determination at this time, I am not inclined to consider that the by-law is unreasonable. My preliminary view is that it is entirely reasonable for a Body Corporate to approve a by-law designating a specific place where bicycles may be stored in the scheme. However there are further issued which may arise here.

The applicant does not suggest an alternative for the parking of the apparently numerous bicycles in the scheme. Moreover, he does not seem to suggest that no bicycles should be parked in the area in question. Rather the problem seems to have arisen when more than a single line of bicycles are parked there. The applicant asserts that bicycles are sometimes parked four deep, extending 1.4 metres into the driveway and obstructing their access to their car parks. This is not evident from the photographs provided by the applicant, which show only a single line of bikes predominately behind the yellow line marking on the edge of the driveway. Any obstruction to the car park access is not immediately obvious from these photographs.

The Chairperson’s submission indicates that additional bike racks have been installed which will ensure only one bicycle per space, which I take to mean only a single row of bicycles. However it may be that, through further investigation of the application, the applicant could demonstrate that at times an obstruction does occur even with the extended racks. If a significant obstruction does occur it may well be inappropriate and potentially contrary to By-law 3(1)(a) regarding obstruction of the lawful use of the driveway. However, my preliminarily view from the material provided to date is that a single line of bicycles, either in a bike rack or otherwise parked within the marked yellow line, would not appear to constitute an unreasonable obstruction to the driveway.

It seems to me that the real issue in this dispute is the implementation and enforcement of the proposed by-law and the enforcement of By-law 3. I note that the by-law words refer to ‘designated racks’. The photographs from the applicant do not show any designated racks but the Chairperson’s submissions suggest that these do exist. If the designated racks are sited in such as way as to limit the encroachment of bicycles onto the driveway, for example by providing for only one row of bicycles within or approximately within the yellow line, it would seem that the new by-law would assist any concerns of the applicant rather than compound them. Once recorded, no bicycles could be parked on common property unless they are within the designated racks and so failure to park in those racks – including parking bicycles ‘four deep’ - would be likely to be a breach of by-laws. It would then be for the Body Corporate to ensure that it enforces the by-laws by taking by-law enforcement action against any owner or occupier who parks bikes outside the designated racks or otherwise causes an obstruction. The applicant can also give a Notice to body corporate of contravention of a body corporate by-law form[10] to the Body Corporate if he becomes aware of a by-law breach.

It is not apparent that there will be a significant impact to the Body Corporate from delaying the recording of the new CMS pending a determination of this dispute. However, if the new CMS was recorded and the applicant was ultimately successful, it is unlikely that the additional cost of recording a further CMS would be significant. Moreover, the applicant has not strongly substantiated any defect with the by-law in question. In addition, given that the problem that the applicant complains of exists without the proposed by-law, it is not apparent that an interim order is necessary to give immediate relief to the difficulties currently faced by the applicant.

On the evidence before me, I am not satisfied that the applicant has sufficiently demonstrated that an order preventing the recording of the by-law approved at the July EGM is warranted.

Notwithstanding that, I do consider that there are issues which the parties could work through together in regard to the practical application of the proposed by-laws and the alleged obstruction. I am of the view that conciliation conducted by the independent trained conciliators in the Commissioner’s Office would be of assistance in progressing a resolution to this dispute. For this reason I intend to return this application to the Commissioner with a recommendation that it be referred for conciliation. Without limiting the matters which could be considered at conciliation, the parties could discuss any need for alternative or additional locations for bicycle parking in the scheme, the provision and exact location of designated racks on Level P1, and any action that could be taken to monitor and address bike parking that extends beyond the designated racks and presents a potential obstruction.

The matter will now be investigated in accordance with the usual processes undertaken by this Office. As indicated, in the first instance it will be referred for conciliation. If conciliation is unable to resolve the matter, the matter will proceed to the investigation of the final order including calling of submissions from all affected parties.

[1] Section 247(3) of the Act
[2] See sections 227, 228, 276 and Schedule 5 of the Act
[3] Section 276(2) of the Act
[4] Section 284(1) of the Act
[5] Section 279 of the Act
[6] Section 276 of the Act

[7] Sections 52 to 66 of the Act provide for CMS, including the process for consenting to and recording a CMS.
[8] Schedule 5 of the Act includes, as an example of an order that an adjudicator could make, to remove a by-law if satisfied that it is oppressive or unreasonable having regard to the interests of all owners.

[9] Pursuant to section 94(2) of the Act a body corporate must act reasonably in undertaking its functions, including in making or not making a decision.
[10] BCCM Form 1, as per section 185(2)(a) of the Act

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Admiralty Quays [2008] QBCCMCmr 279 (14 August 2008)