Pine Trees Resort [2011] QBCCMCmr 89 (2 March 2011)

Last Updated: 16 June 2011

REFERENCE: 0550-2010

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12588
Name of Scheme:	Pine Trees Resort
Address of Scheme:	12 Hastings Street, Noosa Heads, Qld 4567

TAKE NOTICE that pursuant to an application made in the course of a dispute under the abovementioned Act by H.G.S. Pty Ltd, the Owner of Lot 1

I hereby order that if Motion 1 and Motion 2 of the vote outside a committee meeting taken on 1st March 2011, or either of them, are carried, that the body corporate for Pine Trees Resort CTS 12588 takes no action to implement either of them. 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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0550-2010

“Pine Trees Resort” CTS 12588

This interim order is made pursuant to an application dated 9th June 2010 by H.G.S. Pty Ltd (the Applicant), owner of Lot 1 in the scheme, against the body corporate for Pine Trees Resort CTS 12588 (the Respondent).

The Applicant is seeking orders as follows -

1. that an area of 11m² of common property used by the Applicant be allocated to Lot 1 as an exclusive use area;
2. that the Respondent attend to the amendment of the community management statement to allow for the change of by-law creating the exclusive use area in favour of Lot 1;
3. that the Respondent consents to the Applicant applying to the Council if necessary for a change of the original development approval;
4. that the Respondent be responsible for the maintenance and costs in relation to the stairs and landing on the common property at the north-west side of the property.
   

On 1st March 2011, the Applicant sought an interim order that “no decision by the Body Corporate in relation to the matters under dispute can be implemented before a final determination is made by the Commissioner” in the circumstances following -

• On 9th November 2010 pursuant to the power invested in the adjudicator of the dispute by section 271 Body Corporate and Community Management Act 1997, the adjudicator sought further information from the Applicant, and on 29th November 2010 the adjudicator advised both parties that she had formed an initial view in the determination of this dispute. On 29th November 2010, the adjudicator invited the Applicant to seek a valuation of the area of 11m ² of common property, the subject of the first outcome sought in this dispute. In that letter, a copy of which was sent to the Respondent, the adjudicator said that she was of the initial view that there was no evidence that the stairs were unauthorised; that they should be maintained by the body corporate; and that if they were to be removed, adequate alternative access should be provided to the Applicant.
• On 9th February 2011 the adjudicator provided to the Respondent, copies of the Applicants’ valuations and invited submissions from the Respondent about the two valuations by 28th February 2011.
• On 22nd February 2011, the Respondent proposed four motions to its committee to be voted on outside a committee meeting, the votes to be returned by 1st March 2011. The four motions concern the demolition of the stairs the subject of the fourth outcome sought in this dispute, at the expiration of 14 days from 1st March 2011; that the Respondent seeks further time to discuss the issues in the dispute and put recommendations to owners; and that the body corporate manager be asked to research and report concerning the costs and consents involved in either one of a sale, long-term lease or short-term lease of the area in dispute.
• The Applicant wrote to the Respondent on 25th February 2011 setting out inter alia that it was of the view that the committee motions were in contradiction of the adjudicator’s letter of 29th November 2010.
  

JURISDICTION

Section 279 Body Corporate and Community Management Act 1997 (the Act), the governing legislation in this dispute, 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. An interim order may be extended, varied, renewed or cancelled until a final order is made. 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.

An interim order may be issued without any reference to other parties to the dispute. (Section 247(3) Act)

DETERMINATION

I am aware that the Respondent is, as of 28th February 2011, seeking a further three months in which to consider its response to my letter of 9th February 2011 which was an invitation to make submissions on the two valuations.

The dispute is still on foot between the parties and it is not my intention in seeking submissions on the valuation and/or views of the body corporate that the body corporate or the committee should be seeking to resolve this dispute. This dispute will be resolved by adjudicator’s order on consideration of the merits of the application and the evidence presented.

The committee and all owners were invited to make submissions on the outcomes sought by the Applicant on 29th July 2011. Four owners made submissions and there was at that time no submission made by the Respondent.

This is a complex matter. The attempt by the Respondent to ask for further time to make submissions whilst at the same time taking unilateral action to remove the stairs which are the subject of this dispute is not to be condoned.

I am of the view that this dispute should be finalised as soon as possible.

ORDER

I therefore order that if Motion 1 and Motion 2 of the vote outside a committee meeting taken on 1st March 2011, or either of them, are carried, that the Respondent takes no action to implement either of them until further order.