Burleigh Surf [2008] QBCCMCmr 48 (11 February 2008)

Last Updated: 17 April 2008

REFERENCE: 0102-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5648
Name of Scheme:	Burleigh Surf
Address of Scheme:	Burleigh Surf Apartments, The Espalanade BURLEIGH QLD 4220

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

Joe and Roma Calabro, the Owner(s) of lot 101

I hereby order that, pending a further interim order or final determination, the body corporate for Burleigh Surf must take all reasonable action to prevent any work furthering the installation of transmission equipment on the roof of the building pursuant to a disputed licence agreement that was purportedly authorised by a committee resolution passed outside a committee meeting dated 30 January 2008. This is an interim order and will remain in effect for a period of not longer than two 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 This order will automatically lapse upon a final order being made or this application being withdrawn.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 0102-2008

“Burleigh Surf” CTS 5648

Interim Application

Burleigh Surf Community Titles Scheme (Burleigh Surf) is a 101 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 Giuseppe and Roma Calabro, owners of lot 101 (applicants) against the body corporate for Burleigh Surf (respondent).

The applicants say that the committee has acted without authority to purport to authorise Allegro Networks Pty Ltd (Allegro) to install transmission equipment on the roof of the building.

Interim Orders Sought

The applicant seeks an interim order to require the body corporate to deny Allegro access to Burleigh Surf to prevent further works being undertaken on the common property. This would operate pending a final determination at which final orders could be considered relating to whether the committee has acted without authority to permit the installation of the transmission equipment.

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 has provided a copy of a resolution passed outside a committee meeting dated 30 January 2008, a copy of a letter disputing this resolution, and a submission that the legislation requires a lease or licence to at least be authorised by a special resolution passed by owners.

The committee was given a limited opportunity to provide a submission on the interim order sought, with the submission being due by 11am today. This office has not received any submission from the committee. However, an officer contacted the chairperson. The chairperson has indicated that Allegro has insisted that it has a right to install the tower under the Telecommunications Act, that some equipment has been there for two years without complaint, and that other equipment has been put there recently but is not installed.

These submissions satisfy me that, if the matter does proceed to final determination, there is at least a serious question to be determined regarding whether any licence to allow the installation of transmission equipment should have been authorised by special resolution (Accommodation Module, 110).

Inconvenience from an interim order

The applicant has established some justification for an interim order prohibiting any further work pursuant to a final determination regarding whether the work is properly authorised.

I have some reluctance in granting the interim order sought without more detail about how it may impact on the body corporate and Allegro. Further, it may be the case that Allegro does have some rights to force the body corporate to give it access to the top of the building pursuant to telecommunications laws. However, it seems appropriate at this stage to grant the applicants an interim order to require the body corporate for Burleigh Surf to take all reasonable action to prevent any work furthering the installation of transmission equipment on the roof of the building pursuant to the particular resolution in dispute. If Allegro does insist upon a legal right of access then the body corporate may wish to consider seeking legal advice or making a submission to this office seeking the amendment of the interim order that has been granted above. Alternatively, the body corporate may still wish to provide access to allow Allegro to maintain existing equipment or remove equipment. The body corporate must, however, take all reasonable action to prevent any work furthering the installation of new transmission equipment on the roof and should supervise any access granted to Allegro in order to ensure this is the case.

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.