Seven Seas [2009] QBCCMCmr 5 (8 January 2009)

Last Updated: 19 February 2009

REFERENCE: 1053-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3341
Name of Scheme:	Seven Seas
Address of Scheme:	34 Moreton Parade CALOUNDRA QLD 4551

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

Roderick Thompson, a co-owner of lot 9

I hereby order that pending the final resolution of this dispute, the body corporate is to refrain from engaging a contractor to replace the door leading to the lot 9 roof terrace area.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1053-2008

“Seven Seas” CTS 3341

The scheme

“Seven Seas” community titles scheme 3341 is subject to the Body Corporate and Community Management Act 1997 (Act) and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 2008.

Application

This application is made by Roderick Thompson, a co-owner of Lot 9 against the Body Corporate seek an interim order to stop the body corporate undertaking certain work until a final outcome has been determined.

The applicant states that an interim order is required as the body corporate committee recently resolved by way of a flying minute, to replace the door to the applicant’s roof terrace. The currently installed door contains a glass panel but the body corporate intends to replace that door with a door that does not contain a glass panel. The applicant believes that there is no urgency for the door to be replaced.

The final outcome sought by the applicant is to have the door to their roof terrace replaced with another door of the same type i.e. containing a glass panel.

Background

The applicant is the owner of a lot which includes a roof terrace. I understand that access to the roof terrace can only be obtained via a stairwell which is part of the common property. The existing door from the stairwell to the roof terrace is in need of replacement and the body corporate wishes to replace the existing door containing a glass panel, with a solid door.

The applicant opposes the installation of a solid door because at present the glass door panel it is the only source of daylight into the stairwell. The applicant states that without this source of light the stairwell is dingy which has an impact upon their use and enjoyment of common property and their lot.

The applicant also states that there are no light switches on the landing from where the door leads to the roof terraces and this presents a danger. Further, it is claimed that it would be inconvenient to rely on electric lighting because the light can only be turned on by a 3 minute timer switch located on the floor below.

The applicant states that that the current door was installed in 2004 but is an inexpensive “hollow core” door with a glass panel inserted. This door deteriorated very quickly as it is not suitable for exterior applications involving exposure to the elements.

On 20 November the committee resolved to accept a quote from W & G Henery for replacement of the door leading to the rooftop area of lot 9. The accompanying explanatory note states that the committee previously agreed to replace all rooftop doors with solid doors as replacement was required. The reasons given for the decision were that a solid door provides better security and lasts longer against the elements whereas a door with a glass window provides less security and is more prone to rot owing to water penetration behind the beading.

While the chairman is under the impression that the committee previously agreed to replace all rooftop doors with solid doors as replacement was required, the applicant does not believe that such a resolution was ever made as he was a member of the committee at the time and body corporate records do not include any such resolution.

The applicant has requested that the body corporate replace the existing door with a door containing a glass panel, and have offered to pay the balance necessary to upgrade the door and have a glass panel included.

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management referred the application to me and In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, I invited submissions from the committee regarding the interim order application.

The body corporate committee disagrees with the applicant’s claim that there are aesthetic, safety and OH&S issues affecting other persons. Rather, it is claimed, the door is not visible from the outside of the building and is not used by owners or occupiers of any other lot. Further, it states that the glass panel provides minimal lighting to the stairwell for which electric lighting is available.

The committee also states that a solid door should be installed to address the quick deterioration experienced when a glass insert is used. The committee believes that a door with a window insert is not suitable “for the location and environment” and the contractor has confirmed that the solid door is more suitable for the extreme marine environment that the building is subjected to. Several committee members recall a previous decision that solid doors, without windows, should be used to replace roof terrace doors but in any event, the current committee believes that solid doors without windows are the most suitable type of door.

The committee also believes that the use of doors with a glass window presents a security risk because persons could access roof terraces by climbing up the outside balconies and gaining access to the stairwell by breaking the glass window.

Jurisdiction

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Sub-sections 279(1) & (2) provide that -
(1) The 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.
Examples
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.
(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; (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

At this point in time, I am concerned with the application for interim orders and the threshold issue of whether an interim order is warranted. 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.[1] The examples in section 279 of the Act indicate the usual circumstances where an interim order might be made and are in the nature of injunctive relief.

While it is not possible to exhaustively define what matters might be the subject of an interim order, an applicant needs to establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency relates to an applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Of particular relevance is evidence that an interim order is necessary to prevent serious or irreparable harm. 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 do need to establish that the circumstances of the application warrant the making of an interim order.

For it to be just and equitable to grant injunctive relief pending a final determination, I would need to be satisfied that the balance of convenience between the parties justifies the grant of injunctive relief. That is, I would need to balance the inconvenience of granting relief now if final orders are
ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted.

While the circumstances of this case may seem quite straightforward, I believe that further consideration is required in order to determine whether the actions of the committee are reasonable. For example, further evidence may be required as to whether the absence of natural light would make the subject stairwell unsafe.

Accordingly, at this point in time, I propose to order that pending the final resolution of this dispute, the body corporate is to refrain from engaging a contractor to replace the door leading to the lot 9 roof terrace. However I would hasten to point out that this order is of a temporary nature to maintain the status quo until such time as a final order is made and should not be taken as an indication of the final outcome.

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[1] Section 279 of the Act