Surfers Beachcomber [2011] QBCCMCmr 15 (18 January 2011)

Number of Scheme:	10411
Name of Scheme:	Surfers Beachcomber
Address of Scheme:	18 Hanlan Street SURFERS PARADISE QLD 4217

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

Aussie Insulation Specialists (VIC) Pty Ltd & Aecon Surfers Pty Ltd, the Owners respectively of Lots 233 and 234, and Lot 239

I hereby order that the application for “urgent order that Angori Tiling Services purportedly engaged on behalf of the Body Corporate cease any further activity pending approval by owners at general meeting”

is dismissed.

This is an application dated 31st October 2010 but amended on 22nd December 2010 by Aussie Insulation Specialists (VIC) Pty Ltd and Aecon Surfers Pty Ltd, (the Applicants), owners respectively of Lot 233 and Lot 234, and Lot 239 against the body corporate for Surfers Beachcomber CTS 10411 (the body corporate) for declarations and orders as follows –

The Applicants also sought an interim order that Angori Tiling Services cease any further activity pending the approval of its engagement at a general meeting.

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

(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)).

Section 247(3) of the Act allows the Commissioner to refer an application to an adjudicator for consideration for an interim order even though proper notice of the application has not been given to the body corporate or other affected persons, and despite the fact that parties to the application have not been given an opportunity to make a submission about the matters in dispute. It seems to me that the Act allows this process because applications for interim orders often relate to emergency or otherwise urgent circumstances, where it is simply impractical or impossible to allow a period for submissions prior to the consideration of the application for interim orders. It is also relevant that generally the purpose of an interim order is simply to maintain the “status quo” of a situation, and not finally to resolve the matters in dispute.

Section 279(1) of the Act allows an adjudicator to issue an interim order in response to an application “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”. Read together with section 247(3), section 279(1) appears to allow an adjudicator to issue an interim order without any reference to other parties to the dispute.

Notwithstanding that the Act allows for interim orders to be issued without reference to other parties, I am of the view that when possible, it is far preferable and more consistent with the principles of natural justice, to allow affected persons to make a submission about an application (even if the time allowed for submissions is necessarily brief) prior to the determination of an application for an interim order.

At the annual general meeting on 15th February 2010, owners voted by Motions 11 and 12 to engage an engineer (Buildcheck) and a building contractor (BRS) to rectify leaks in the podium levels, level 2, and level 5. The committee did not act upon these motions. Instead the committee, on 21st September 2010 engaged other contractors with quotations not approved by owners.

Work commenced on 20th October 2010 without notice to the Applicants or their tenants. On 30th October 2010, the contractors engaged by the committee, Angori Tiling Services (Angori), placed 69 bags of tiles and debris weighing between 1 – 2 tonnes in weight on the roof of the restaurant. The Applicants contacted an engineer who inspected the site and required the convenience store and restaurant to be evacuated because of the weight on the roof. The site was then visited by officers from Queensland Workplace Health and Safety, and the local authority. On 30th October 2010, Workplace Health and Safety again stopped work. Cranes were called in to remove the material on the roof.

The Applicants say that the body corporate has not acted reasonably or lawfully in the engagement of Angori.

The Applicant Aecon Surfers Pty Ltd (Aecon) has exclusive use of the area being worked on by Angori, and access is being taken by Angori through Aecon’s lot without permission.

The work has caused excessive noise and disruption to the restaurant and convenience store. Lot 234 (Aussie) is the restaurant directly below the podium; Lot 239 (Aecon) is on the first level and has exclusive use of the balcony.

Further, the Applicants say that Angori’s quotation was about $46,000 although BRS had quoted $111,111. The committee’s spending limit is $46,200 so it appears to the Applicants that the true cost is in excess of the committee’s spending limit. The Applicants also say that they do not think that two quotations were obtained.

The Applicants feel that Angori is not competent to do the work. Work is still proceeding on the site.

The Applicants now say that flood damage has been caused to their tenants by Angori’s works having blocked or interfered with the air conditioner drainage on the podium level.

The Applicants provide a copy of the minutes of a committee meeting held on 21st September 2010. By Motion 7, the minutes record that the quotation from BRS was dated 24th April 2009 and expired after 60 days. The new caretaker had “no documentation from the previous committee.” The secretary contacted Buildcheck who advised that into longer wished to be considered for the work, and that there was no contract in place.

The Applicants provided a copy of the Buildcheck report which is dated 10th March 2009. They also provide copies of emails to the committee which show that they have been trying to get the remedial work done from about August 2010.

The body corporate submitted that owners are required to maintain their lots including any improvements on their lots. The concrete slab which is the roof of Lot 233, the restaurant, is the exclusive use area of Lot 239, offices. There was an “escape of water” into Lot 233, and the committee became involved to ascertain the cause of the leaks, but was not satisfied that it was a body corporate obligation to resolve the issue. However, it decided to implement a plan to fix the reason for the escape “and to worry about the responsibilities of those tasks at a later stage.” The committee contacted a contractor to identify the point of escape, and to fix the reason for the escape.

On 29th October 2010, the contractor advised the committee that the source of water had been located, and on 15th November 2010 commenced the remedial work. By 30th November 2010, the contractor had removed all the sources of water that could be identified in the “absence of the full cooperation of the holder of Lot 233.” However “one escape of water remains”, and this will need the cooperation of the owner of Lot 233.

The committee is “currently engaged in research to establish who will bear the final cost of paying the contractor...” but is not prepared to release any information about this at present.

It says that the dismissed committee member has now been re-instated as of 14th December 2010 so that there is no vacancy on the committee.

An application for an interim order is in the nature of an injunction to the civil court registry, and as such, the determinator must balance the inconvenience which might be to be caused to the respondent if the order is granted, against the difficulty or impossibility for the applicant to obtain a remedy if an order is not made. An applicant for an interim order must also demonstrate that there is a serious legal issue to be determined, and that prima facie, the applicant has a good case, that is, on the evidence so far considered, the applicant has a good chance of succeeding with the claim at final order. Interim orders are in the nature of “holding orders” to maintain the status quo until the final issues in dispute have been better explored and all relevant parties have had the opportunity to make submissions.

There is clearly further investigation to be made in this dispute. I have not been provided with the quotations from Buildcheck and BRS referred to in the minutes of the annual general meeting, and which were apparently attached to the notice of meeting. Nor have I seen the quotation of Angori. It is therefore not possible to compare the two briefs for work to be undertaken.

The dispute seems to stem from the committee engaging contractors in September 2010 to undertake certain works, which the body corporate authorised, or part of which the body corporate authorised, in February 2010. The body corporate authorised specific contractors against quotations received. The committee did not use these contractors, and there is evidence that the contractor engaged by the committee employed unsafe work practices and has caused concern to the Applicants. There is also some evidence that the original contractor BRS was no longer available to do the work. The body corporate has not addressed either of these issues.

It also seems to me that there is a background to this dispute of a change of committee and/or body corporate manager and/or caretaker since the body corporate approved the remedial works in February 2010, and that the administrative affairs of the body corporate have been disrupted.

The Applicants now apply for an interim order for Angori to stop work, saying that Angori is not authorised by the body corporate. The body corporate however says that Angori is performing works within the spending limit of the committee, and that the works are all but finished.

It seems to me that the Applicants have known since at latest 30th October 2010 that Angori was performing remedial work on areas affecting the Applicants. Indeed, the application is dated 31st October 2010. However, thereafter the Applicants have taken steps through their legal advisors to ask the body corporate to cease work, and given further deadlines to the body corporate to stop work, which have not been heeded by the body corporate. Subsequent amendments were not made to the application until 22nd December 2010.

It therefore seems to me that the time for issuing an interim order has passed. Whilst the Applicants have provided prima facie evidence of a serious legal issue at the basis of the dispute, I am not satisfied that an interim order is required.

I therefore dismiss this application. This application should now proceed on basis of the final outcomes sought by the Applicants.

I now refer this application back to the Commissioner in accordance with section 279(4) Act.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders