Marina Apartments [2011] QBCCMCmr 409 (19 September 2011)

Last Updated: 28 September 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Marina Apartments [2011] QBCCMCmr 409
PARTIES:	Peter Finlayson (owner of lot 21) and Charles Lindstrom (owner of lot 7) (applicants) The Body Corporate for Marina Apartments (respondent)
SCHEME:	Marina Apartments CTS 10660 (Marina Apartments)
JURISDICTION:	Sections 227(1) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0843-2011
DECISION DATE:	19 September 2011
DECISION OF:	S Zeidler, Adjudicator
CATCHWORDS:	APPLICATION FOR INTERIM ORDERS Act, s 279; Standard Module, s159.

INTERIM ORDERS MADE:

I hereby order that the application for interim orders is dismissed.

REASONS FOR DECISION
Introduction

[1] At the Extraordinary General Meeting (EGM) dated 8 July 2011 the body corporate resolved to appoint Pinnacle Roof Restoration (PRR) to carry out roofing repairs at a cost of $48,675.00. On 19 September 2011 PRR commenced work pursuant to this resolution.
[2] The applicants dispute the appointment of PRR, claiming the body corporate has not obtained a proper report regarding the condition of the roof. The applicants seek an interim order postponing the roof works.
[3] An interim order is normally only justified when:

1. The application raises a serious question that will need to be determined; and
2. The inconvenience likely to result from the interim order is outweighed by the potential detriment if the order is not granted.

Overview

Jurisdiction

[4] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] This is a dispute between lot owners and the body corporate. Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute in the context of a community titles scheme about a claimed or anticipated contravention of the Act.
[5] 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 to which the application relates.

Procedural Matters

[6] 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. The Commissioner has referred the application notwithstanding that affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application[2]. In the circumstances, I have provided the Body Corporate Committee (committee) with a limited opportunity to make a written submission in response to the interim application.

Analysis

Serious Legal Question

[7] The committee say the roof is 30 years old and in need of restoration works such as pressure cleaning, general repairs and the recoating of roof tiles. Over the past 12 months the committee has obtained six quotations for the works. At the recent EGM, the body corporate considered two of these quotations and resolved to engage PRR to undertake the roof restoration works.
[8] The applicants dispute the appointment of PRR. They claim the body corporate should have obtained a proper report regarding the condition of the roof. In support of their assertions, the applicants have provided a letter from Adam Schofield of Phoenix Roof Restoration, undated, saying:

“I have carried out an inspection (from the ground)...I have noticed some missing cement on some of the gables but this is minor. I was unable to determine if there were any broken tiles. A further inspection of the roof is recommended for a detailed description of all repairs needed...”

[9] The body corporate must maintain common property in good condition, including, in a structurally sound condition where appropriate.[3] In this instance, neither party is disputing the roof is common property and thus the body corporate’s responsibility to maintain. Therefore, the question for consideration is whether the roof restoration works are, in the circumstances, reasonable maintenance works.
[10] The applicants have provided no evidence to suggest the proposed roofing works are not reasonable maintenance. While I note the letter from Mr Schofield, I consider this letter neither supports nor opposes the application. Rather, the letter merely states that Mr Schofield was unable to determine whether any roofing repairs were needed from his (on the ground) inspection of the roof. Conversely, six contractors have provided quotes for the required works. In addition, the majority of owners (voting at the EGM) supported the repairs.
[11] The onus is on the applicants to provide evidence to support their outcome sought. After considering the material presented and the fact that the roof is 30 years old, I am not satisfied the applicants have provided sufficient evidence to demonstrate a serious legal question exists in relation to the roof maintenance works at this stage.

Inconvenience from an Interim Order

[12] 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.
[13] As the roofing work has already started, the committee say substantial costs will be incurred by the body corporate if the work is either delayed or suspended. In support of their assertions, the committee have provided a letter dated 15 September 2011 from PRR saying “should works be halted or postponed until a later date, costs will be ongoing and revised accordingly...should works be halted or postponed, we reserve the right to charge interest on any costs due”.
[14] On the other hand should the work proceed, it may render any final order regarding the reasonableness of the work ineffective.
[15] On balance, after considering the arguments presented and the fact that the work has already commenced, I am not satisfied the balance of convenience favours the making of an interim order postponing the roofing works pending a final order.

Conclusion

[16] Based on the information presented, I am dismissing the interim order application.
[17] Should the applicants wish to continue with this application, it will proceed in accordance with the normal processes undertaken by this Office, including the calling of submissions from all affected parties. A final order to the application will be made in due course.

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[1] Sections 227,228, 276 and Schedule 5 of the Act.
[2] Section 247(3) of the Act.
[3] Section 159(1) of the Standard Module.