Villa Sirene [2009] QBCCMCmr 384 (6 October 2009)

Number of Scheme:	26546
Name of Scheme:	Villa Sirene
Address of Scheme:	105A Albatross Avenue MERMAID BEACH QLD 4218

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

I hereby order that, pending a final determination, Graham Langford and Angela Rogers, owners of lot 1 (respondents) must not make or allow any improvements to the common property of Villa Sirene apart from improvements authorised or required by the Deed of Compromise signed by Hirochiyo Suita, owner of lot 2 (applicant) on 17 April 2009.

I further order that the application for interim orders is otherwise 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.

Villa Sirene Community Titles Scheme (Villa Sirene) is a 2 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Small Scheme Module Regulation (Small Scheme Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a building format plan. The plan shows that the scheme consists of a three storey building and common property. Each lot is spread over the three levels of the building with lot 1 comprised of the front northern quarter of the ground floor, the northern half of the second floor, and the northern half of the top floor. Lot 2 is comprised of the remainder of the building. That is, most of the ground floor including a large courtyard area, the southern side of the second floor, and the southern side of the third floor.

This application is by Hirochiyo Suita, owner of lot 2 (applicant) seeking orders against Graham Langford and Angela Rogers, owners of lot 1 (respondents). The applicant says that a builder has commenced work to rebuild some stairs but that there are inadequate footings and it appears the previously existing wall is not going to be built. The applicant attaches emails evidencing a dispute over the design of the proposed works. Order are sought for an immediate cessation of work on the common property until all requirements are met to the standards required under Queensland legislation and an extraordinary general meeting is held to vote on the proposed work. A final order is sought to require the respondents to provide engineer drawings and design, two quotations, and a BSA approved builders’ contract to the body corporate extraordinary general meeting for approval.

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 held a teleconference with Charles Hamilton on behalf of the applicant by power of attorney and with Graham Langford as a respondent.

The main concern raised on behalf of the applicant was that the body corporate had not approved the work being carried out under the instruction of the respondents. Submissions were made to the effect that the body corporate could not be sure that the work would be of good quality and of the same appearance as what was there previously. In particular, it was submitted that the footings are inadequate, the builder might be unlicensed, and the design might be different.

Graham Langford responded to the effect that the work had been agreed by a deed entered into by the body corporate, the owners and the developer. He also indicated that he was required to perform the work, the work was primarily on his own exclusive use area, and that it was his responsibility rather than the body corporate’s to perform the work and maintain his exclusive use area. Graham Langford also stated that he was using a licensed builder and local council issues had been addressed.

Charles Hamilton replied that he would provide a copy of the deed in question and that sections 3.3 and 3.7 of the deed required that the respondent perform the work in accordance with any Legislative Requirements. It was submitted that the Small Schemes Module requires that improvements to the common property or exclusive use areas must be approved by the body corporate. Charles Hamilton said that the deed was signed on the understanding that these legislative requirements would be complied with and the body corporate would approve any works at an extraordinary general meeting prior to the works being carried out.

The primary issue that requires determination is whether or not the works being carried out under the instruction of the respondents need to be approved by the body corporate in general meeting. To the extent that the works are covered by clause 3.2(a), 3.2(b) or 3.2(d) then it would appear obvious that the body corporate has already approved the works by signing the deed. I note that this includes the construction of footings for the new besser block wall to be constructed along the common boundary and the replacement or restoration of all improvements on the common property as rendered necessary by other works that were carried out. I note the respondents have provided an indemnity in respect of these works in clause 4.1(b) of the deed.

To the extent that the respondents perform work that is not covered by clause 3.2(a), 3.2(b) or 3.2(d) then the applicant may have grounds for an order preventing or reversing the work on the basis it was not approved by the body corporate. While copies of emails supplied by the applicant provide evidence of a dispute about other potential works, Graham Langford has indicated that he is not proceeding with the disputed work referred to in those emails. Graham Langford said that he has engaged a licensed builder and that the work will result in improvements of the same appearance as what was previously there. I note that the majority of the work in question appears to be a staircase on the respondents’ exclusive use area that is not shown as part of the building on the registered plan and would appear to be an improvement constructed by or for the owner of lot 1 and wholly maintainable by the owner of lot 1.

I do not see any merit in submissions for the applicant that work authorised in the deed needs to be further approved by the body corporate at an extraordinary general meeting prior to it being performed. Instead, it appears the work has already been approved by the body corporate. In particular, I note that both owners have separately entered into the deed and it is difficult to see how the owners could argue that body corporate can refuse to authorise the work. The only merit in the applicant’s submissions would be if the respondents performed work different from that agreed in the deed or otherwise than in accordance with the standards required by the deed.

In the circumstances, the applicant has failed to satisfy me that it is appropriate to grant an interim order preventing the work from going ahead. Rather, the respondents can choose to proceed if they wish. Proceeding prior to a final determination is, however, at the risk that the work will have to be removed or rectified if the applicant can show the work is not in accordance with the Act or other legislation. In this respect, I note that the applicant has provided a photograph of the area as it formerly existed and it may avoid further problems if the respondents ensure that their builder also has a copy of this photograph.

Also, given the evidence of some dispute about a proposed redesign of the common property adjacent to lot 1, I am prepared to order that pending a final determination the respondents must not make any improvements to common property apart from improvements authorised or required by the Deed of Compromise in question.

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

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Villa Sirene [2009] QBCCMCmr 384 (6 October 2009)