The Watermark Townsville [2008] QBCCMCmr 50 (25 February 2008)

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

I hereby order that, pending a final determination, the body corporate for The Watermark Townsville must not take any action to purchase or install steps for the pool area. This is unless the body corporate first sends owners written notice of a resolution that authorises the purchase and installation of the steps and any action is only taken at least two weeks after that notice has been sent.

This is an interim order and will remain in effect for a period of not longer than six 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 This order will automatically lapse upon a final order being made or this application being withdrawn.

The Watermark Townsville Community Titles Scheme (The Watermark) is a 46 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application for interim orders. It arises out of an application by Lynette Summers, an owner of lot 310 (applicant) against the body corporate for The Watermark (respondent).

The applicant alleges that, on 12 February 2008, the committee voted unanimously to install pool steps according to a quotation from Combined Metal Fabrication (CMF). However, some of the committee members then met with another company, Quality Steel Fabrications and Engineering (QSFE), to request the construction and installation of pool steps.

The applicant seeks an interim order to top the installation of pool stairs fabricated by QSFE. This would operate pending a final determination at which final orders could be considered relating to whether the proposed pool stairs fabricated by QSFE are in contradiction of the committee resolution of 12 February 2008.

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.

The applicant alleges that certain committee members met with QSFE to arrange for the fabrication and installation of pool stairs despite the committee voting that CMF be engaged to provide the stairs.

Submissions from three committee members were to the effect that the committee have voted in favour of the CMF option but had asked two members investigate further regarding the price and size of the stairs. It is submitted that this investigation showed that the CMF stairs would have been illegal but that the QSFE option could be adjusted to achieve the required result well below the committee’s spending limit. The submissions indicate that an order was placed with QSFE but that this order has been stopped pending a further committee meeting.

These submissions indicate that the present dispute may have resulted from a relatively minor misunderstanding. However, if the matter does proceed to final determination, there is a serious legal question to be determined regarding whether the committee has properly authorised the proposed new order with QSFE and whether the committee is acting upon resolutions prior to giving notice of those resolutions to owners. I note that the amount of spending is well within the committee spending limit and improvements limit (Standard Module 103, 113). However, there are serious questions regarding whether action is being taken without proper authorisation by committee resolution and prior to giving owners proper notice of the resolution (Standard Module, 37(3)).

The applicant has established some justification for an interim order prohibiting the purchase or installation of the chairs pending a final determination of the dispute.

However, it is possible that the applicant will not succeed in establishing any contravention of the legislation and it would be inconvenient for the body corporate to be subject to an interim order prohibiting the work if owners wanted the work to proceed.

It is also possible that, during the time this application is awaiting determination, owners or the committee may wish to pass valid resolutions to correct any actual or perceived irregularities that were raised in the application. I consider it appropriate that the interim order allows any irregularities to be corrected if that is possible. However, as the issue is contentious, it seems appropriate that the body corporate not take any action until at least two weeks after notice of any subsequent resolution is sent to owners so that there is a fair opportunity for owners to raise any further challenges before any further work occurs.

In the circumstances, it seems appropriate to grant an interim order preventing the body corporate taking any action to purchase or install steps for the pool area subject to the order allowing for the possibility that the dispute may be resolved by subsequent resolutions passed by the body corporate.

For these reasons, I make the interim order above. If necessary, a final order will be made in due course.

Number of Scheme:	35528
Name of Scheme:	The Watermark Townsville
Address of Scheme:	72 – 74 The Strand NORTH WARD QLD 4810

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Watermark Townsville [2008] QBCCMCmr 50 (25 February 2008)