Sanctuary Cove Principal Body Corporate [2008] QBCCMCmr 351 (30 January 2008)

Last Updated: 30 October 2008

REFERENCE: 0034-2008

INTERIM ORDER OF A REFEREE

MADE UNDER PART V OF

BUILDING UNITS AND GROUP TITLES ACT 1980

Number of Scheme:	GTP 202
Name of Scheme:	Sanctuary Cove Principal Body Corporate
Address of Scheme:	SANCTUARY COVE 4212 QUEENSLAND

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

I hereby order that, by consent, the Sanctuary Cove Principal Body Corporate shall not: put any motion or motions for approval of an Easement Deed with Sonja Kay Trott, the owner of lot 90 on GRP 3441 affecting lot 70 on GTP 2207 before the members for a vote; and that it will not enter into an Easement Deed with Sonja Kay Trott in respect of the transfer or other dealing with lot 70 on GTP 2207, unless and until such time as this issue has been finally determined by the Commissioner or the matter otherwise resolved by the parties, and this application is withdrawn.

STATEMENT OF REFEREE’S REASONS FOR DECISION – REF 34-2008

The applicant, Plumeria Body Corporate, a subsidiary body corporate scheme and member of the Sanctuary Cove Principal Body Corporate, has sought the following orders of a Referee under the Building Units and Group Titles Act 1980, quote –

1. That the landscaping and fence constructed at Lot 70 are unlawful and in contravention of Easement No. 702758408.
2. That any approval for the landscaping and fence is unlawful and is withdrawn.

100. That the landscaping and fence constructed at Lot 70 are unlawful and in breach of the Act.

4. That the PBC do all things to remove the fence and landscaping constructed at Lot 70 in contravention of Easement No. 702758408 and / or without approval and / or in breach of the Act.
5. That the PBC conduct (in proposing to transfer Lot 70 direct to Lot 90) is without power and in breach of the Act.
6. That the PBC be restrained from putting its motion for approval and execution of the Easement Deed (with Sonja K Trott) before its members for vote.
7. That the PBC be restrained from entering into the Easement Deed or other deed or agreement purporting to transfer the benefit of Lot 70 to Lot 90 or in any other way further burden Lot 70 in favour of lot 90.
8. That the PBC be restrained from doing any act or thing resulting in Lot 70 ceasing to be part of the secondary thoroughfare.
9. The applicant’s costs and costs of the Referee be paid by the PBC.
10. Such other order (as) the Referee deems appropriate.
    

The applicant Pumeria Body Corporate (Pumeria) has also sought the following interim orders of a Referee, quote:

1. To restrain the Sanctuary Cove Principal Body Corporate from putting its motion for approval and execution of the Easement Deed (with Sonja K Trott) before its members for vote.
2. To restrain the Sanctuary Cove Principal Body Corporate from entering into the Easement Deed or such other Deed or Agreement as may be proposed, with Sonja K Trott with respect to the transfer of or other dealing with Lot 70 on GTP 2207.
   

Section 104A of the Sanctuary Cove Resort Act 1985 provides -

104A Dealing with disputes
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 5.3

3 Building Units and Group Titles Act 1980, part 5 (Disputes)

Consequently, the relevant dispute resolution provisions are those under the Building Units and Group Titles Act 1980 and not the Body Corporate and Community Management Act 1997, which is the generic legislation now applying to the vast majority of community title schemes operating in Queensland. Relevantly, sections 77 and 78 of the Building Units and Group Titles Act 1980 provide as follows -

77 General powers of referee to make orders
(1) A referee may, pursuant to an application of a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, 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.
(2) Where a body corporate has a discretion as to whether or not it exercises or performs a power, authority, duty or function conferred or imposed on it by this Act, it shall be deemed to have refused or failed to exercise or perform that power, authority, duty or function only if it has decided not to exercise or perform that power, authority, duty or function.
(3) Nothing in this part authorises the referee to make an order of the kind that may be made by the Court under section 25 or 26.
(4) Nothing in this part affects the generality of subsection (1), but an order in respect of any matter dealt with in any other section of this part shall not be made under this section.

78 Further powers of referee
(1) A referee is empowered to make an order that—
(a) requires a party to the dispute before the referee to pay money not exceeding the sum of $1 000 to a person specified in the order;
(b) requires a party to the dispute before the referee to do, or refrain from doing, some specified act to which the application relates;
(c) strikes out for want of jurisdiction the dispute before the referee.
(2) An order made by a referee may direct that the order shall be complied with within a time limited in the order.
(3) An order made by a referee that requires the payment of money may be made to take effect instanter or so as to take effect upon default being made in complying with some other order made by the referee.

This office sought submissions in respect of the proposed interim orders only from both the Sanctuary Cove Principal Body Corporate (SCPBC) and Sonja Kay Trott, the owner of lot 90 in GRP 3441 (Trott). The response of SCPBC, through its solicitors is in part as follows:

(SCPBC) confirms the following:

1. that it will not put the motion for approval of the Easement Deed with Ms Trott before the members for vote; and
2. that it will not enter into an Easement Deed with Ms Trott in respect to the transfer or other dealing with lot 70 on GTP 2207,

until such time as this issue has been finally determined by the Commissioner or the matter otherwise resolved by the parties.

In the circumstances, I consider this response satisfies for the most part the requested interim orders sought by the applicant, and I intend to make a consent interim order in essentially these terms, without any consideration of the basis or merits on which the interim orders were sought.

In the circumstances, given the complexity of the issues raised, and the fact that I consider that there is now no particular urgency to this resolution of this matter (given that the status quo has been the case for a very considerable period of time), I intend to allow both the SCPBC and Trott an extended period of eight (8) weeks for the making of submissions in respect of the application. Such extension is justified on the basis of the complexity of the issues involved. Thereafter I intend to allow a further period of three (3) weeks for the applicant to submit a reply to submissions made (if any).

REFERENCE: 0034-2008A

INTERIM ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Number of Plan:	GTP 202
Name of Scheme:	Sanctuary Cove Principal Body Corporate
Address of Scheme:	SANCTUARY COVE QUEENSLAND 4212

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

The Proprietors, Plumeria GTP 2207

I hereby order that the Sanctuary Cove Principal Body Corporate must not: put any motion or motions for approval of an Easement Deed with Sonja Kay Trott, the owner of lot 90 on GRP 3441 affecting lot 70 on GTP 2207 before the members for a vote; or enter into an Easement Deed with Sonja Kay Trott in respect of the transfer or other dealing with lot 70 on GTP 2207, unless and until such time as this issue has been finally determined or the matter otherwise resolved by the parties and this application withdrawn.

STATEMENT OF REFEREE’S REASONS FOR DECISION - REF 0034-2008A

“Sanctuary Cove Principal Body Corporate”

Application

The Proprietors, Plumeria GTP No. 2207 (Plumeria) lodged an application seeking interim orders to prevent the Sanctuary Cove Principal Body Corporate (Sanctuary Cove Principal) from entering into a proposed easement or dealing with Sonja Trott (Trott) concerning part of the secondary thoroughfare within Sanctuary Cove.

Jurisdiction

Sanctuary Cove Principal is created under the Sanctuary Cove Resort Act 1985 (SCA). Section 104A of the SCA makes provision for the application of the Building Units and Group Titles Act 1980 (BUGTA) stating:

104A Dealing with disputes

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.

BUGTA continues to apply regarding the operation of the SCA despite the subsequent commencement of the Body Corporate and Community Management Act 1997 (BUGTA, 5A). The applicant is in the position of a person having an interest in a lot in Sanctuary Cove Principal. A Referee under BUGTA has power to make interim orders and to renew interim orders for this type of application (BUGTA, 76).

Background

On 30 January 2008, a Referee made interim orders as follows:

I hereby order that, by consent, the Sanctuary Cove Principal Body Corporate shall not:

1. put any motion or motions for approval of an Easement Deed with Sonja Kay Trott, the owner of lot 90 on GRP 3441 affecting lot 70 on GTP 2207 before the members for a vote; and
2. that it will not enter into an Easement Deed with Sonja Kay Trott in respect of the transfer or other dealing with lot 70 on GTP 2207,

unless and until such time as this issue has been finally determined by the Commissioner or the matter otherwise resolved by the parties, and this application is withdrawn.

By facsimile of 16 April 2008 the applicant sought an extension of this interim order. On 21 April 2008 I wrote to the parties indicating that, as the application has not been resolved, I was considering providing further interim orders on similar terms to the interim order made on 30 January 2008. No objections were received and by facsimile of 28 April 2008 the body corporate informed this office that it does not have any objections to further interim orders on similar terms.

Decision

As the application for final orders has not been resolved, I am satisfied that it is appropriate to make a new interim order on similar terms to the initial interim order (BUGTA, 76).

The application for final orders remains outstanding and will be finally determined in due course. It should be noted the interim order ceases to have effect at the expiration of 3 months from the date of this order unless renewed upon request by the applicant; or where it is revoked by a tribunal or by the referee; or where a final order is made with respect to the application; or where an order is made dismissing the application; or where the application is withdrawn or otherwise ended.

Order

For these reasons, I make the order above.