Graceville Fiveways Building [2009] QBCCMCmr 341 (8 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0812-2009

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3705
Name of Scheme:	Graceville Fiveways Building
Address of Scheme:	Long Street East, Graceville Queensland

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Chi Fun Wong and Sau Man Poon, the owner of Lots 1, 2, 4 and 5 and Charles Goh, the owner of Lot 3

I hereby order that the application for an interim order by Chi Fun Wong and Sau Man Poon, the owner of Lots 1, 2, 4 and 5 and Charles Goh, the owner of Lot 3 that Anomi Udayanthi Alahakone-Bruynius, the owner of Lot 6 and Oscar Alahakone, the owner of Lot 7 cause the construction work on their lots to cease forthwith, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0812-2009

“Graceville Fiveways Building” CTS 3705

The scheme
“Graceville Fiveways Building” community titles scheme 3705 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application is by Chi Fun Wong and Sau Man Poon, the owner of Lots 1, 2, 4 and 5 and Charles Goh, the owner of Lot 3 (Applicants) against Anomi Udayanthi Alahakone-Bruynius, the owner of Lot 6 and Oscar Alahakone, the owner of Lot 7 (Respondents) seeking an outcome that the Respondents obtain Body Corporate consent for the construction work on their lots. The Applicants have sought an interim order that the Respondents cause the construction work on their lots to cease forthwith.

The Applicants say the Respondents have completely demolished a part of the building on their lots and have commenced construction work on a new building in contravention of By-Law 8.1. They have provided a copy of:

• A letter dated 16 July 2009 from Prudential Body Corporate Management Pty Ltd (Body Corporate Manager) to each Respondent about renovations to lots, and stating that any change to the appearance of the building and use of common property requires Body Corporate approval and that unapproved work breaches the Act. The Manager required the Respondents to stop renovation work and to place plans before a general meeting.
• A letter dated 22 July 2009 from Mr Alahakone to the Body Corporate Manager saying the Brisbane City Council approved plans and a letter detailing the works were forwarded to the Manager’s office on 19 December 2008, and that the steel fabrication is now complete and all exterior fittings and claddings have been imported and that he cannot afford to cease construction.
• A letter dated 23 July 2009 from the Body Corporate Manager to the Respondents stating the 19 December 2008 correspondence was not received as it was incorrectly addressed, and advising that the refurbishment is to cease pending Body Corporate approval.
• A letter dated 4 August 2009 from Ben Trost of Stephens & Tozer Solicitors to Roberts and Kane Solicitors saying the matter was discussed at the last annual general meeting, their client has acted in good faith at all times, and to cease construction at this stage would have dire financial consequences.
  

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 to resolve a dispute 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”.

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, I invited submissions from the Respondents and the committee regarding the interim order application.

The Applicants made submissions as committee members agreeing to the application.

Ben Trost made submissions for Mr Alahakone providing a copy of the minutes of the Annual General Meeting dated 17 July 2008 (AGM) which note that the Applicants and Mr Alahakone were present. Under ‘General Business’ it is minuted that Mr Alahakone presented a detailed design of a proposed restaurant and that signage, the use of common property for seating of patrons, and the construction of an awning was discussed. It is submitted the only objections to the renovations raised at the AGM were minuted and that they proceeded on the basis that there was Body Corporate consent. Mr Trost provided a copy of the 19 December 2008 letter to the Body Corporate Manager saying the only material change to the plans tabled at the AGM is the height of the proposed roof. He questions the claim the Manager did not receive the letter. He says an Extraordinary General Meeting has been called for 14 September 2009 and that the dispute will be settled at this meeting. Mr Trost claims an interim order in the terms sought is premature and will have serious financial consequences for his business.

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 Applicants need to establish that the circumstances of the application warrant the making of an interim order.

The Applicants want construction work to cease. While the Applicants have not detailed the work that is being carried out and have not explained the basis for disputing the work, the Respondents have not denied that work is in progress. In my view, the Applicants have demonstrated urgent circumstances to warrant consideration of the interim order application.

To assist me in determining whether it is just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I consider it relevant to briefly consider whether the Applicants raise any serious legal question that will need to be determined. If a serious legal question is raised, then it may be appropriate to make an interim order to attempt to preserve the integrity of the matters in dispute pending the final determination.

The Applicants have principally relied on By-Law 8.1. The community management statement for the scheme (No. 704341346) indicates this By-Law regulates changing the external appearance of a lot. In my view, further investigation of this point is not necessary for the purposes of making an interim order. The Applicants have not demonstrated the relevance of this By-Law. In addition, given the claim a by-law has been contravened, the Applicants have not shown that the preliminary by-law contravention procedures stated in section 185 of the Act have been completed or that there are prevailing special circumstances of the nature stated in section 186 of the Act to excuse them from complying with section 185. For these reasons, I do not consider the stated contravention of By-Law 8.1 warrants an interim order in the terms sought. The Applicants have sought an interim order about construction on Lots 6 and 7; yet they have not explained the work being carried out on these Lots.

While the July 2009 letters to the Respondents from the Body Corporate Manager mention common property, the Applicants have not made any submissions about work on common property. The copy of the 19 December 2008 letter submitted by Mr Trost includes plans suggesting a restaurant is proposed to be constructed on land adjacent to Lots 6 and 7. The plan of subdivision for the scheme (BUP 11892) indicates that land to the north, east and west of these Lots is common property.

A body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners (s 94(1) and s 152(1)(a), Act). Generally, a lot owner cannot carry out work or make changes to common property without body corporate authorisation.
Reference has been made to the discussion under ‘General Business’ at the AGM. It would seem Mr Alahakone believes there is Body Corporate consent.

While it has not been argued by the Applicants, the work identified in the plans may be of the nature of improvements to common property for the benefit of an owner’s lot. An improvement is defined in schedule 6 of the Act to include the erection of a building, a structural change and a non-structural change. Section 164 of the Standard Module makes provision for the body corporate authorising an owner to make an improvement to the common property for the benefit of the owner’s lot. Generally, unless the improvements are ‘minor’, the authorisation of the body corporate is by ordinary resolution in general meeting (s 108, Act). While reference has been made to the AGM, there is a question as to whether any decision made at the AGM constitutes an ordinary resolution of the Body Corporate (if such a resolution is required). A resolution may only be passed if the motion is included on the agenda and stated in the voting paper (s 87(5), Standard Module). Discussion of the nature minuted as ‘General Business’ would ordinarily require consideration and determination at a subsequent properly convened general meeting.

While it has not been raised by the parties, I note By-Law 12 stated in the community management statement gives the owner of Lot 7 exclusive use of common property; land which would seem to be identified in the plans of the proposed restaurant. By-Law 12.3 would seem to regulate erections on the exclusive use area. By-Law 12.4 relates to screening. By-Law 12.7 relates to erecting a roof. An exclusive use by-law may authorise the owner to make stated improvements to the part of the common property to which the by-law relates (s 174(1), Standard Module). The relevance of the By-Law in the circumstances may require consideration should the application proceed to final determination. There may be a question about the Body Corporate authority that would be necessary if the By-Law is relevant to any of the work which may be the subject of this application.

Even though it is not being denied that either one or both Respondents is having work carried out on scheme land (possibly on a lot and/or on common property), I am not satisfied from the material presented by the Applicants that a serious question has been raised to warrant an interim order in the terms sought. The Respondents have argued detriment if work is required to cease. Neither the Applicants nor the Body Corporate have provided any grounds to explain the harm or loss that is likely to be suffered if the interim order is not made in the terms sought. The Applicants have shown that the Body Corporate Manager has made the Respondents aware of a possible consequence; the removal of all renovations. In balancing the interests of the parties, I am also satisfied that the interests of the Respondents prevail.

For these reasons, the application for an interim order is dismissed. 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.