Edgewater New Farm [2010] QBCCMCmr 19 (14 January 2010)

Number of Scheme:	17998
Name of Scheme:	Edgewater New Farm
Address of Scheme:	136 Oxlade Drive NEW FARM QLD 4005

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

I hereby order that pending a final order or a further interim order, the Body Corporate for Edgewater New Farm shall not cut down, nor authorise the cutting down, of the five palm trees on common property at the front of the scheme.

I further order that this interim order expires when a further interim order is issued, or when the application is finally determined or discontinued, or upon the expiry of 12 months from the date of this order, whichever is the earliest.

Edgewater New Farm community titles scheme 17998 (“Edgewater New Farm”) consists of 8 lots and common property. The Community Management Statement (“CMS”) for Edgewater New Farm indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (“Standard Module”) applies to the scheme. The Department of Natural Resources Mines and Water records show the scheme is registered as Building Units Plan 100732.

This is an application for interim orders lodged by Matthew Yoong, owner of Lot 5 (“applicant”) on 3 December 2009 under the Body Corporate and Community Management Act 1997 (“Act”).

The applicant seeks an interim order against the Body Corporate for Edgewater New Farm (“respondent”) in the following terms:

I seek an interim order that the chairperson and secretary of the body corporate committee be restrained from taking any steps, themselves or through their servants or agents, whether on their own behalf or purportedly on behalf of the body corporate committee or the body corporate to remove the five palm trees on the common property for a period of 12 months or until the matter is finally determined or until earlier order.

The situation is urgent because, last night I received a written memo from Lana Bain, the secretary of the body corporate committee, advising that the palm trees at the front of the building will be removed this Friday (i.e. tomorrow). If an interim order is not made to preserve the status quo the determination of whether the chairperson and the secretary are entitle to engage a tree-lopper to remove the palm trees will be pointless.

A determination as to whether, in the events that have occurred, the chairperson and secretary of the body corporate committee are entitled to engage a tree-lopper to remove five palm trees from the common property.

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order. As the application was only received by our Office on 3 December 2009 at 3:10pm and required an order by 4 December 2009, there was insufficient time for a copy of the application to be provided to the body corporate committee (“the committee”) for comment. However, I note that our Office contacted Ms Sally Kinmond (Teys Pty Ltd), Mr Robert and Mrs Lana Bain and Ms Susan Carey on 3 December 2009 in relation to the application via telephone.

The Commissioner has referred the application to departmental adjudication notwithstanding that the committee and affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application[1]. However, pursuant to section 247 of the Act, this is not required and will not offend natural justice principles. Further, the Body Corporate will be able to respond to the application prior to the consideration of the final orders.

This application relates to the applicant’s request to prevent five palm trees being cut down pending a subsequent order. The circumstances of the dispute are as follows:

The applicant states that there are five palm trees standing approximately 12 metres high on the common property at the front of the property. The applicant claims that the trees have been in the scheme at approximately the same height for the past 13 years.

On 13 August 2009 a motion to accept a quote from Northcoast Woodchipping (“NW”) to remove the trees was defeated with two committee members voting for the motion and two committee members voting against the motion. The minutes of the committee meeting state that “a contractor who recently cleaned the Cocos Palms described them as being unsafe and recommended that they be removed asap.” The application also contains a quotation dated 30 June 2009 from NW stating the “palms are way too old and tall to keep maintaining they don’t look to be safe...they need to be removed asap...”.

The applicant states that NW attended the property on 18 September 2009, stating that they had been engaged by the body corporate to remove the trees. The applicant states that he informed the contractor that the motion had been defeated and the contractor did not remove the trees.

On 21 September 2009, a motion to accept a quote from NW to remove the trees was presented to all committee members outside a committee meeting. Two committee members voted in favour of the motion and no committee members voted against the motion or abstained from voting on the motion. The motion was initially declared as passed. However, the applicant states that advice from the body corporate manager confirmed that the motion had been defeated.

A subsequent committee meeting was scheduled for 4 November 2009. The applicant states that two committee members were unable to attend and were told that the meeting would not proceed. However, the meeting did proceed with two committee members present and the chairperson holding a proxy for another committee member. The committee voted to amend the minutes dated 13 August 2009 to record that the motion to remove the trees had been carried and to amend the flying minute distributed on 21 September 2009 to allow NW to remove the trees.

The applicant states that a notice was subsequently issued stating that the trees would be removed on 17 November 2009. The applicant states that the owners of lots 2, 3, 4, 5 and 7 (five out of eight lot owners) objected to the removal of the trees and requested that the issue be put to a general meeting. The tree-lopper was cancelled on 16 November 2009 and no trees were removed.

The applicant then received a letter dated 1 December 2009 from L Bain, secretary, stating that the Cocos palms at the front of the building will be removed this Friday.

The applicant states that he received advice from arborist, Rob Walton from Brisbane Tree Experts, that the trees were “in very good condition, appeared to be very healthy and well-maintained and were safe, due to this maintenance”.

The applicant states that an interim order is necessary due to the nature and urgency of the circumstances. If an interim order is not made, the common property trees will be removed and destroyed and any future resolution regarding the issue will be largely pointless as the trees will not be able to be reinstated.

As stated above, our Office contacted Mr Robert and Mrs Lana Bain and Ms Susan Carey in relation to the application via telephone. Their comments in regards to the application can be summarised as follows:

Further, when contacted by our Office, Teys Pty Ltd stated that they had been instructed by the body corporate “not to interfere or intervene” in the matter of the trees.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2] 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:

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

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

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4] 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 of the application.

At this time, I am concerned with the application for an interim order and the threshold issue of whether interim orders are 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.[5] Any order granted must be just and equitable in the circumstances.[6] 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 define the range of matters that 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.

It is not appropriate to consider the substantive issues in the application in detail at this time. But to determine whether it is just and equitable to grant interim relief, it is relevant to briefly consider the issues raised in the application. As an interim order can be considered on an ex parte basis, an adjudicator must be satisfied that the application raises serious legal questions and that the
balance of convenience between the parties justifies injunctive relief. That is, an adjudicator must 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. Of particular relevance is evidence that an interim order is necessary to prevent serious or irreparable harm.

The applicant raises objections to the body corporate’s decision to remove the palm trees at the front of the scheme. In particular, the applicant argues that arborist, Rob Walton from Brisbane Tree Experts, stated that the trees were “in very good condition, appeared to be very healthy and well-maintained and were safe, due to this maintenance”. The applicant also asserts that the removal of the trees has not been validly authorised by the committee.

While, I note that the committee has been unable to make a submission at this stage, telephone conversations with Mr Robert and Mrs Lana Bain and Ms Susan Carey indicate that the body corporate has received expert advice stating that the trees are unsafe. Further, the body corporate argue that there have been two binding resolutions of the committee allowing the trees to be cut down and that the trees are a danger to public safety and a failure to take action may compromise the body corporate’s insurance. Moreover, I note that the applicant has included in the application a quotation dated 30 June 2009 from NW stating the “palms are way too old and tall to keep maintaining they don’t look to be safe...they need to be removed asap...”

I have been provided with insufficient evidence to support either party’s assertions regarding the condition of the trees at this stage. However, I am satisfied that the trees are scheduled to be removed on 4 December 2009 and that there is a serious legal question to be determined regarding whether the trees should be removed or remain in their current location. Further, I question whether the purported resolutions of the committee dated 13 August 2009 and 21 September 2009 are valid resolutions of the committee.

In considering whether to grant the interim order sought, it is relevant 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. The applicant states that an interim order is necessary due to the nature and urgency of the circumstances. Further, the applicant asserts that if an interim order is not made and the common property trees are removed, any future resolution regarding the issue will be largely pointless as the trees will not be able to be reinstated. As the trees in question will not be able to be reinstated if an interim order is not made, I am satisfied that any inconvenience caused to the body corporate by granting relief now and maintaining the status quo is less than the inconvenience of refusing relief now if final orders are ultimately granted.

On balance, I am satisfied that the applicant has presented sufficient evidence of genuine concerns relating to the removal of the palm trees. Accordingly, I have made an order that pending a final order or a further interim order, the body corporate shall not cut down, nor authorise the cutting down, of the five palm trees on common property at the front of the scheme.

However, as there has been insufficient time for the committee to make a submission on this matter, I am prepared to consider a variation of the interim order pursuant to section 279 of the Act, if the committee can provide strong arguments regarding the need for the trees to be cut down pending a final order. Expert evidence regarding the condition and safety of the trees would be required in this regard.

Further, I would also like to note that nothing in this interim order prevents this issue being considered by the body corporate at a general meeting.[7]

EFFECT OF AN INTERIM ORDER

Subject to any request for a variation of the interim order, the matter will now proceed in accordance with the normal processes undertaken by this Office. In the first instance I intend to refer the application to the Commissioner with a recommendation that conciliation be conducted in respect of the dispute. If conciliation is unable to resolve the dispute, the matter will proceed to the investigation of the final order, including calling further submissions.

All parties should note the provisions of section 279(2) of the Act, which provides that:

(2) An interim order—

(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.

I have provided that this interim order has effect for a period of not longer than twelve months. It is the responsibility of the applicant to apply to extend this order if no final determination has been made within that period. This Office will not automatically renew an interim order and the order will automatically lapse upon a final order being made or this application being withdrawn.

[1] Section 247(3) of the Act.
[2] See sections 227, 228, 276 and Schedule 5 of the Act.
[3] Section 276(2) of the Act.
[4] Section 284(1) of the Act.
[5] Section 279 of the Act.
[6] Section 276 of the Act.
[7] Note: A lot owner can requisition an Extraordinary General Meeting under section 67 of the Standard Module if they obtain support from 25% of all the lots included in the scheme.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Edgewater New Farm [2010] QBCCMCmr 19 (14 January 2010)