Chevron Renaissance [2009] QBCCMCmr 322 (28 August 2009)

Number of Scheme:	30946
Name of Scheme:	Chevron Renaissance
Address of Scheme:	23 Ferny Avenue SURFERS PARADISE QLD 4217

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

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.

Chevron Renaissance Community Titles Scheme (Chevron Renaissance) is a 718 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 the body corporate for Chevron Renaissance (body corporate) against Mooreville Investments Pty Ltd (Mooreville) and Broomstix Pty Ltd (Broomstix). The application was originally against Mooreville as owner of lots 3236-3241 but was subsequently amended to include Broomstix based on information that Mooreville had sold the above lots to Broomstix between 29 May 2009 and 3 June 2009.

The body corporate refers to by-law 31.5 that states "Any lot nominated by the Original Owner from time to time can be used for commercial purposes". The applicant says that all lots apart from 3236 to 3241 are used for residential purposes and that there has been no exercise by the original owner of its purported entitlements under by-law 31.5 prior to 15 May 2009. It is submitted that on 15 May 2009 the original owner purported to nominate lots 3236 to 3241 for use for commercial purposes. The body corporate alleges that this purported nomination is invalid as by-law 31.5 is oppressive, unreasonable or invalid and ought to be considered void.

The body corporate seeks an interim order to declare that no nomination under by-law 31.5 take effect pending a determination of the validity of by-law 31.5. 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.

I have reviewed submissions provided on behalf of Broomstix. It is submitted that the lots in question have been used for commercial offices since the commencement of the scheme. It is further submitted that the by-law in question is not oppressive, unreasonable, or invalid and that any order limiting the right to use the premises as commercial offices would result in substantial loss and damage to Broomstix.

Having reviewed the submissions I accept that there is a serious question to be determined about the validity of by-law 31.5 but consider that granting the interim order sought is likely to result in substantial loss and damage to Broomstix. I note that the body corporate has not provided evidence of significant loss or irreparable harm if the interim order is refused. Also, the body corporate has not provided evidence of any undertaking by which it would compensate Broomstix if it is ultimately unsuccessful in its application. In the circumstances, I am not satisfied that it is appropriate to grant the interim orders sought.

For these reasons, the application for interim orders is dismissed. If necessary, a final order will be made in due course.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Chevron Renaissance [2009] QBCCMCmr 322 (28 August 2009)