Rainbow Regis [2008] QBCCMCmr 8 (14 January 2008)

Last Updated: 1 March 2008

REFERENCE: 0008-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14574
Name of Scheme:	Rainbow Regis
Address of Scheme:	26B Eden Avenue RAINBOW BAY QLD 4225

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

Keith and Jennifer Taylor, the Owner(s) of lot 4

I hereby order that the application for interim orders is dismissed. The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0008-2008

“Rainbow Regis” CTS 14574

Interim Application

Rainbow Regis Community Titles Scheme (Rainbow Regis) is a 6 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 Keith and Jennifer Taylor, owner of lot 4 (applicants) against the owners of lots 1, 3, 5 and 6 (respondents).

Interim Orders Sought

The applicants seek an interim order to stop any further rendering of the building. This would operate pending a final determination at which final orders could be considered relating to whether or not the building should be rendered and whether a number of allegedly unauthorised changes to the common property should be rectified.

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 applicants say that the rendering has not been authorised by the body corporate.

Submissions on behalf of the respondents are to the effect that the applicants are deliberately stalling essential work on all aspects of the building. It is submitted that the rendering of the building was brought up at the body corporate meeting on 24 July 2007 as a possible solution to the concrete cancer and cracking of the brickwork, that a section of the front of the building was rendered to show the owners a sample of workmanship, and that all five owners apart from the applicants have signed voting papers seeking to have the work performed.

These submissions indicate that the majority of owners want the rendering performed. However, there are questions raised about whether proper procedures have been complied with to authorise the work.

Inconvenience from an interim order

The applicant has established some justification for an interim order prohibiting any rendering pending a final determination of the dispute.

However, it is possible that the rendering is, or will be, properly authorised and it would be inconvenient for the body corporate to be subject to an interim order prohibiting the work if the work is partly performed and almost all owners want the work to proceed.

On 10 January I wrote to one of the respondents requesting additional details of the meetings related to the rendering, details of when the rendering is proposed to take place, and details of the likely additional costs if the work is delayed by an interim order. A response to this information was requested by 17 January 2008. However, the applicants have since written to say that the rendering is currently proceeding under the instructions of one of the owners.

It seems from this submission that one of the owners, despite being aware of the application challenging the rendering, is taking the risk that a final determination will conclude that the rendering is properly approved by the body corporate. If, on a final determination, it becomes clear that the majority of owners do not want the building to be rendered then I would have little hesitation in ordering that the rendering be removed at the cost of this person. Alternatively, if the majority of owners want the building rendered but a failure to comply with procedures is shown to have resulted in increased costs then I would consider final orders that excuse the applicants from levies to the extent just and equitable to prevent them having to contribute to unauthorised costs.

However, in the circumstances, particularly given the submissions indicating that the majority of the owners want the rendering performed, I am not satisfied that it is appropriate to make an interim order stopping the rendering process that is partly complete. Rather, it is for the persons involved in procuring the rendering to consider if they wish the rendering to continue in the circumstances of the present application and the possibility the rendering is unauthorised.

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.