White Lanterns [2008] QBCCMCmr 371 (10 October 2008)

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

I hereby order that Mr. Ricardo Romero is prohibited from:

(a) speaking to, blocking or interfering in any way with Glen Williams and any employee or contractor of Brush Huts Oz Style;
(b) speaking to, blocking or interfering in any way any contractor engaged by the body corporate and further, be prohibited from purporting to engage contractors on behalf of the body corporate;
(c) causing a nuisance on common property;
(d) interfering unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property; and
(e) until and unless he is reappointed to any executive or ordinary member position on the committee, representing to anyone that he has any position of authority on the body corporate.

I further order that the body corporate is entitled to act on the committee resolution of 10 October 2008 notwithstanding that the notice of opposition period (section 56 Standard Module) has not expired on the grounds that the matter is an emergency.

White Lanterns Community Titles Scheme (White Lanterns) is a 24 lot scheme under the Body Corporate and Community Management Act 2008 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by the body corporate (applicant) seeking the urgent interim orders against Ricardo Romero, the owner of lot 25 (respondent).

2. That the body corporate be entitled to act on the committee resolution of 10 October 2008 notwithstanding that the notice of opposition period (section 56 Standard Module) has not expired on the grounds that the matter is an emergency.

The body corporate states that by a committee resolution dated 10 October it is authorised to seek the above orders that are urgently required to enable contractors to complete works which they have commenced, but have been forced to abandon owing to the actions of the respondent.
The work in question is the replacement of a perimeter fence by “Brush huts Oz Style” which was authorised by way of a resolution that was passed unanimously at an EGM held on 20 August 2008.

The applicant further states that although the respondent was previously the chairperson of the body corporate, a new committee was chosen at the last AGM on 20 May 2008 and the new Chairperson/ Secretary/ Treasurer is Mia Turner, with Messrs Hennessy and Braun as ordinary committee members. Nevertheless, the respondent has continued to represent to various persons including members of the Queensland Police Service, that he is the current Chairperson. To support his claim, he has produced “out of date” correspondence showing that he was, at the time of the correspondence, the Chairperson. It is claimed that the respondent has thereby sought to deceive various persons including police officers.

In support of the above claims, solicitors for the applicant have submitted copies of the following documents:

It is claimed that the respondent has a history of interfering with contractors who have been lawfully engaged by the body corporate to maintain the common property, including the gardening contractor and pool contractor. The body corporate is therefore seeking orders to prevent the respondents from interfering with the fencing contractor so that the works can be completed without further delay and expense as a result of the respondent’s interference.

The order is also required for the purposes of providing confirmation to members of the Queensland Police Service, that Mr. Romero is not the current Chairperson as it is anticipated that Queensland Police will again be called to the site to keep the peace once the work recommences.

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) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Sub-sections 279(1) & (2) provide that -
(1) The adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.
Examples
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.
(2) An interim order
(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; (c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when
(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred. ...

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 of the application. In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

As an interim order can be considered on an ex parte basis an adjudicator must be satisfied that the application raises serious questions to be determined and that the balance of convenience between the parties justifies the grant of 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 states that the orders are urgently required. In such circumstances section 247 of the Act contemplates that submissions may be dispensed with before making an interim Order. Given that the applicant is seeking orders to prevent the respondent interfering with the fencing contractor when he returns to the site on Monday 13 October, which is the next business day after today, it is not feasible to obtain submissions from the body corporate at this point in time and therefore an appropriate case to be considered on an ex parte basis.

The information which I have been given to date has been provided via the body corporate’s solicitors and I believe it is reasonable to assume that the applicant is aware that substantial penalties can be imposed in the event that false or misleading information is provided to an adjudicator[1]. On that basis I see no grounds not to accept the veracity of the grounds for seeking the orders.

In support of the application I have been provided with minutes of the AGM dated 20 May 2008 which include the results of the committee election showing that Mr. Romero is no longer a member of the body corporate committee. I have also been provided with Minutes of EGM held on 20 August showing unanimous support (5 votes to 0) for motion to have left hand corner side fence replaced by Brush Huts Oz Style. Finally I have been provided with a copy of a letter of complaint to the body corporate by owner of “Brush Huts Oz Style” alleging harassment by the respondent by telephone and on site causing him to lose one day’s work.

Having regard to the above, I am satisfied that it is appropriate for me to make the following interim orders sought by the applicant:

That the body corporate be entitled to act on the committee resolution of 10 October 2008 notwithstanding that the notice of opposition period (section 56 Standard Module) has not expired on the grounds that the matter is an emergency.

This application will now be administered in accordance with the Act and the normal processes of this Office which may include calling for submissions from the body corporate and all lot owners prior to the making of a final order. It should be noted that this order is of a temporary nature pending the making of final orders and should not be taken as an indicator of the final outcome.

Number of Scheme:	21388
Name of Scheme:	White Lanterns
Address of Scheme:	147 Kingston Road WOODRIDGE QLD 4114

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

White Lanterns [2008] QBCCMCmr 371 (10 October 2008)