The Centre [2009] QBCCMCmr 404 (16 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0588-2009A

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14718
Name of Scheme:	The Centre
Address of Scheme:	3131 Gold Coast Highway SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Philip Tyler, the Owner of Lot 29

I hereby order that the following interim order issued on 16 July 2009: I hereby order that, pending a final determination on this matter, the Body Corporate for The Centre shall not implement the resolutions passed by the Body Corporate Committee on 2 June 2009 regarding the connection of Lot 29 to the grease trap or otherwise take any steps to disconnect Lot 29 from the grease trap. is extended. This interim order has effect until three (3) months have elapsed from the date of this further interim order, or until a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0588-2009A

“The Centre” CTS 14718

The Centre community titles scheme 14718 (The Centre) consists of 69 lots and common property. The community management statement (CMS) for The Centre indicates that the Body Corporate and Community Management (Commercial Module) Regulation 2008 (Commercial Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 343.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Phillip Tyler, Owner of Lot 29 (applicant) on 25 June 2009.

The applicant interim sought orders against the Body Corporate for The Centre (respondent) in the following terms:

To allow use by my tenant of the grease-trap/sump located outside Lot 29.

This action is required urgently as otherwise, if Lot 29 is disconnected from the grease-trap, my tenant will be unable to operate his restaurant business.

The applicant also seeks the following final order:

To allow use by my tenant of the grease-trap/sump located outside Lot 29.

On 16 July 2009 I made the following interim orders:

I hereby order that, pending a final determination on this matter, the Body Corporate for The Centre shall not implement the resolutions passed by the Body Corporate Committee on 2 June 2009 regarding the connection of Lot 29 to the grease trap or otherwise take any steps to disconnect Lot 29 from the grease trap.

On 12 October 2009 the applicant made a written request to extend the interim order so that the interim order remained in place until the final orders are issued.

PROCEDURAL MATTERS

The interim order was issued on 16 July 2009 after a limited opportunity had been provided to the Committee to make submissions in relation to the interim order. Submissions were subsequently received from the Body Corporate.

Following the interim order I referred the application back to the Commissioner with a recommendation that it be referred for attempted conciliation of the dispute. I understand the parties participated in a conciliation session on 3 September 2009 but unfortunately were not able to reach agreement.

Subsequently, the Commissioner’s Office sought submissions from affected parties including all owners. The period for making submissions closed on 28 September 2009 and the applicant has been provided with an opportunity to respond to submissions. The applicant has requested an extension of time until 23 November 2009 to respond to the submissions.

The Body Corporate has been advised of the applicant’s request for an extension of the interim order. The Body Corporate’s legal representatives have confirmed in writing that the Body Corporate has no objection to the extension of the interim.

MATTERS IN DISPUTE

The application relates to the use of a grease trap located next to Lot 29. The issues in dispute are outlined in detail in the reasons for the interim order and it is not necessary to restate those at this time.

JURISDICTION

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances.

Section 279(2) of the Act further provides that:

(2) An interim order—

(a) has effect for a period (not longer than 1 year) stated in the order; and

(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and

(c) may be cancelled by a later order made by the adjudicator; and

(d) if it does not lapse or is not cancelled earlier, lapses when—

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or

(iii) a final order is made by an adjudicator to whom the application is referred.

DETERMINATION

The sole issue for consideration at this time is whether it is appropriate to make an order extending the interim order to enable it to remain in place pending a determination of the final order.

In relation to the interim order issued on 16 July 2009 I canvassed the issues relating to the impact on parties of making the particular order. I was satisfied at the time that, in the circumstances, there would be no immediate adverse impact suffered to the Body Corporate or its members from the interim order. I have not been advised that these circumstances have changed and the Committee have not raised any objection to the extension of the interim order.

Accordingly, and for the same reasons as indicated on 16 July 2009, I am satisfied that it is appropriate to extend the interim order to preserve the status quo pending final orders.

While there are a significant number of matters currently pending adjudication in this Office I anticipate that an extension of a further three months should be sufficient until this matter can be finalised. However, if unforseen events change the anticipated timeframes for determining the application, the applicant may request a further extension.