The Moorings on Golden Beach [2008] QBCCMCmr 449 (28 November 2008)

Last Updated: 10 December 2008

REFERENCE: 1011-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27923
Name of Scheme:	The Moorings on Golden Beach
Address of Scheme:	88 Esplanade GOLDEN BEACH QLD 4551

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ristorante Al Mare Pty Ltd, the occupier of Lot 3

I hereby order that pending a final determination of this application, the body corporate for The Moorings on Golden Beach community titles scheme 27923 shall not proceed with, implement or otherwise act upon the resolution made at the committee meeting dated 22 November 2008 under ‘Inward Correspondence’ that Ristorante Al Mare Pty Ltd, the occupier of Lot 3 remove the camera equipment and make good any damage by Friday 28th November 2008 or the Body Corporate would arrange for this work to be completed and the occupier billed for the costs. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1011-2008

“The Moorings on Golden Beach” CTS 27923

The scheme
“The Moorings on Golden Beach” community titles scheme 27923 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application dated 24 November 2008 is by Ristorante Al Mare Pty Ltd (Applicant) against the Body Corporate for an order that to keep video surveillance equipment which provides protection for staff, their cars and property.

The Applicant says the video surveillance equipment has been installed professionally, its view is limited to their office, car parks and storage area, the cabling is minor and has zero impact on the complex. The Applicant states the equipment protects their staff, insurance and operations as a licensed premise. It is submitted the equipment was installed because the Body Corporate promote video surveillance but do not provide it, and that the café has been broken into and thousands of dollars of property has been stolen. It is stated the café operators (Les Toft and Peter Martin) have had many discussions with the resident managers and the chairperson (Mr O’Brien) about security issues. It is also submitted that the chairperson informed Les Toft at a recent committee meeting that he could put in video surveillance.

The Applicant provided a copy of two emails from Les Toft to North Coast Body Corporate. The first dated 10 May 2008 report approximately 16 chairs being stolen from the common property car park area stating that since the “office was broken into 2 years ago, we have continually drawn your attention to the fact you have signs declaring video surveillance but provide none”. The second email dated 21 November 2008 requested permission to install video surveillance and referred to an earlier break-in and recent theft of trailers, chairs and tables from a storage facility. In apologising for installing the video surveillance, Mr Toft stated they needed to act on a timely basis to protect their livelihood, staff and property.

The Applicant provided a copy of a letter to Les Toft dated 23 November 2008 from Col O’Brien (chairperson) regarding retrospective application for approval to install security surveillance equipment on common property. Mr O’Brien states “the application has been considered and was not approved” as the committee has a “concern for setting the irresponsible precedent of authorising the use of surveillance cameras for private viewing as we consider this to be a gross infringement of civil liberties...the cabling, surveillance camera and associated fittings which have been installed on common property...are required to be removed...The removal and repairs are to be completed within 7 days of receipt of this letter, namely, 30.11.08. Should you fail to comply with this order, arrangements shall be made for the removal and repairs by a suitably qualified tradesperson at your expense”.

The Applicant provided photographs noted as ‘The Moorings resort signage and bogus cameras’, ‘The Moorings café external photos cabling minimised’, The Moorings café car park cabling and camera’, and ‘The Moorings café what our office sees our office our cars our exclusive use areas’.

The Applicant has sought an interim order that the surveillance equipment remain intact and untouched.

Jurisdiction
In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me even though affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement. Section 279(1) provides that an 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.

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

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 26 November 2008 I invited submissions from the committee regarding the interim order application, and a copy of the application was provided to North Coast Body Corporate Management Services (Body Corporate Manager) for distribution to committee members.

Given the short timeframe between the making of the application and the 30 November 2008 date stated in the abovementioned 23 November 2008 letter from the chairperson, I invited submissions regarding the interim order application by 9am today.

The Body Corporate Manager made submissions on behalf of the chairperson that while Les Toft attended the committee meeting dated 9 August 2008, he never sought approval to install the surveillance equipment and the Body Corporate has never given approval. It is submitted the owner of Lot 3 and the on site management complained to the committee that the Applicant was in breach of the by-laws. It is stated the chairperson visited the Applicant, reported there had been a breach of by-laws and that approval was required to do any work on common property. It is said that the Applicant reported he didn’t know what the process was, so he just went ahead and that the chairperson recommended the Applicant submit a request to the committee, which the Applicant did. It is submitted the committee, at the meeting dated 22 November 2008, resolved not to approve the request for the reasons outlined in the letter from the chairperson to Les Toft dated 23 November 2008. It is stated that on 23 November 2008, the chairperson gave the Applicant written confirmation of the breach of by-laws and outlined the instructions pertaining to the removal of the surveillance equipment.

Before making the interim order, I requested a copy of the minutes of the committee meeting dated 22 November 2008. The Manager provided a copy of the minutes where under the agenda item ‘Inward Correspondence’, it is stated that an email had been received from the occupier seeking approval for the installation of “a security camera for observation of the outside of their office door situated in the garage. It was noted that the coverage of the camera included some area of common property. The committee considered that approval would not have been given had the request been made before the work had taken place, because this would be an inappropriate precedent for any other owner or resident wishing to install a security camera in the car space or other area where privacy issues could exist for other owners/residents/guests. It was resolved that the Chairman would visit, and follow-up with a letter, the leaseholder and advise that the camera equipment is to be removed and any damage made good by COB Friday 28th November 2008 or the BC would arrange for this work to be completed and the leaseholder billed for the costs”.

Determination
Given section 279(1) of the Act, 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.

The Applicant has shown that if the surveillance equipment is not removed from common property by 30 November 2008, the Body Corporate will make arrangements for the removal and repairs by a suitably qualified tradesperson at the Applicant’s expense. The minutes of the committee meeting dated 22 November 2008 indicate that the committee require the Applicant to remove the equipment by close of business today. In my view, the Applicant has demonstrated urgent circumstances to warrant consideration of the interim order application.

Level A of the relevant plan of subdivision for the scheme (SP 118477) shows Lot 3 on Levels A and B. The Level A part of the Lot is noted ‘Garage’. The community management statement for the scheme includes By-Law 47 ‘Exclusive Use (Car Parking)’. Lot 3 has been allocated exclusive use of the area marked “3” on the sketch plan included in the community management statement. This area is on Level A to the north-west of Lot 3’s garage. The By-Law states the “occupier...is entitled to the exclusive use...for the purposes of car parking and storage...Each occupier...must use the...exclusive use area for the purposes of car parking and/or storage only...”

It is not disputed that the Applicant has installed video surveillance equipment on scheme land, including on common property. The Body Corporate must administer the common property for the benefit of the owners of lots included in the scheme and must enforce the community management statement, including the by-laws (s 94(1)(b), Act). In doing so, the Body Corporate must act reasonably (s 94(2), Act).

It is evident that the Applicant unsuccessfully sought retrospective approval from the committee for the work that was carried out on common property, and that the committee refused approval on the basis of precedent and privacy issues. The submissions made by the Manager refer to a breach of by-laws.

The scheme by-laws bind the Applicant as the occupier of Lot 3 (s 59, Act). The Act prescribes a detailed framework for dealing with by-law contraventions. Section 182 of the Act provides that if a body corporate reasonably believes that an owner or an occupier is contravening a by-law and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person to remedy the contravention. The notice must state that if the person does not comply, the body corporate may start proceedings in the Magistrates Court or make a dispute resolution application (s 182(4)(e), Act).

However, the committee has not referred to the specific term of a by-law that is being relied on by the Body Corporate and, it would seem, has not sought to apply the by-law enforcement provisions of the Act. It may be that By-Law 5 applies in the circumstances. This By-Law provides that an occupier of a lot must not, without the Body Corporate’s written approval, mark, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property. It is uncertain why the committee did not choose to proceed applying the by-law enforcement provisions of the Act.

The committee have not made submissions explaining the legislative basis for removing the equipment. Neither the minutes nor the submissions explain the basis of the concerns about precedent and privacy. Nothing has been submitted demonstrating the urgency for having the equipment removed. The correspondence from the chairperson provided by the Applicant and the submissions made on behalf of the chairperson do not point to any urgent circumstances that have arisen as a consequence of the installation of the infrastructure. Neither has the Body Corporate demonstrated the problems caused by the existence of the infrastructure. Nor has it been shown that that the installation unreasonably prevents, or interferes unreasonably with another person’s use and enjoyment of their lot or the common property or otherwise puts the Body Corporate at risk.

In my view, and for the purpose of deciding the application for an interim order, it is significant that a business is conducted on Lot 3, that the Applicant can use a part of common property for storage purposes, that property has been stolen, that concerns have been raised with the committee, and that the Applicant has stated that the equipment’s view is limited to their office, car parks and storage area.

For the purposes of making an interim order, I have concluded in the circumstances that the balance of convenience rests with the Applicant and that on an interim basis, the Body Corporate be withheld from implementing the resolution of the committee made at the 22 November 2008 meeting. The interim order will preserve the integrity of matters until such time as the committee and owners are given a proper opportunity to respond to the issues raised and all these issues are fully considered.

This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.