URGENT DISPUTE APPLICATIONS

Our clients regularly ask how they can quickly resolve what they consider an ‘urgent’ situation. While we acknowledge there is a considerable amount of stress involved in body corporate disputes – often intensified by the proximity of residents to one another – no general process exists to consider ‘urgent’ applications.

However, circumstances may warrant certain matters being fast-tracked.

This article explores the limited situations when this may occur – specifically:

• interim order applications
• emergency expenditure applications
• expeditable applications

This article focuses on interim order applications and briefly discusses the other two categories. If your matter does not fall within these categories, there should be no expectation of priority and the normal avenues for lodging a dispute application would apply.

Although it is not the role of this office to provide legal advice about the type of application that should be lodged, this article will assist you to understand your options and to avoid common mistakes that can result in unnecessary delays.

Interim order applications

An interim order is a temporary order to urgently protect rights and interests until final orders are made.

Many of the interim order applications received by our office fall short of the necessary requirements to be considered for adjudication. The reality is that approximately 46% of interim order applications lodged do not actually progress to adjudication. They are either withdrawn by the applicant or rejected by the Commissioner. Of those interim order applications that do progress to an adjudicator, approximately 50% are dismissed.

A further caution against lodging interim order applications without understanding the requirements is that they attract a larger filing fee. If an interim order application is lodged and it does not meet the requirements, the fee will not be refunded.

The statistics above should be an important reminder to ensure you satisfy all the necessary criteria – outlined below – before lodging an interim order application.

Urgency

The interim order you are requesting must be genuinely urgent.

If the basis for the urgency is simply your preference for a swift resolution, this would not be enough to warrant an interim order being made. You must be able to demonstrate the gravity of the circumstances, or any serious legal questions raised.

Temporary order

The interim order must also be of a temporary nature.

This means that granting the interim order should not resolve your dispute. Rather, it should only give temporary relief until final orders are made. If the interim order you are seeking would provide the ultimate resolution for your dispute, lodging an interim order application would be the wrong option.

Related final order

As interim orders and final orders are connected, there must be a final order(s) that relates to the interim order being sought.

Essentially, an applicant must seek two separate orders:

• a temporary interim order, and
• a related final order.

The final order would provide closure for the overall dispute.

Self-resolution

You must provide evidence of your attempts to resolve the matter internally. These attempts to resolve the issue must be made before the application has been lodged with our office.

If you lodge an interim order application without showing you have asked the respondent to do – or in many cases, not do – whatever it is you are urgently seeking in the interim, your application may not progress.

Possible scenarios where an interim order application may be warranted

The two scenarios below provide examples of circumstances that may warrant an interim order application.

Scenario 1

An owner named Bob is concerned about improvements to the building proposed by the committee in the agenda for the upcoming annual general meeting.

Although the cost of the work is more than the major spending limit for the body corporate, Bob notes that the body corporate has only obtained one quote for owners to consider.

After doing some research, Bob believes that the same works could be undertaken at a significantly reduced cost to the body corporate.

Bob has expressed his concerns to the committee in writing, but they have told Bob that if the motion passes at the general meeting, the works will commence immediately.

It may be possible for Bob to seek an interim order to stop the works temporarily until a final order is made by an adjudicator.

If Bob wishes to seek an interim order, he should write to his committee to request that they not take any action to implement the motion until the final order is made.

Scenario 2

The body corporate has made recent changes to an area of common property that Linda, an owner, believes could pose a safety risk to certain residents.

Linda has asked the committee in writing to put some temporary safety measures in place until they can resolve the issue properly. The committee has rejected Linda’s request.

It may be possible for Linda to seek an interim order, so the body corporate puts certain temporary safety measures in place until a final order is made by an adjudicator.

Emergency expenditure applications

Where a body corporate proposal involves spending that exceeds the committee’s spending limit, it typically needs to be approved by the owners at a general meeting.

Depending on the size of the scheme, the preparation associated with holding a general meeting can be both time-consuming and costly. A general meeting must also be held at least 21 days after notice of the meeting is given to owners.

The combination of these factors may create considerable obstacles for a body corporate where time is of the essence for adopting a proposal. The legislation provides an exception if an adjudicator determines the spending is necessary to meet an emergency and makes an order authorising the spending.

For example, in the matter of Seahaven at Trinity [2019] QBCCMCmr 176, there was a leak in a water pipe on common property that had caused damage under the driveway and had the “potential for a structural collapse of the car park/driveway area”. After considering different factors, the adjudicator ultimately determined there was a genuine emergency and authorised the spending.

Simply stating the normal processes prescribed under the legislation are too inconvenient would not be sufficient grounds for an application of this kind. The onus will be on the applicant (normally the body corporate) to demonstrate there is a current, genuine emergency requiring the body corporate to take direct action.

When lodging an application of this kind, at least one quote should be obtained for the expense and certain details of the work to be carried should be provided – specifically, a description of the work, the date of commencement and the estimated timeframe.

Expeditable applications

Certain routine or urgent matters may be expedited by the Commissioner and adjudicators. Asking for a matter to be expedited because of a preference for it to be dealt with quickly, is unlikely to result in it being expedited.

Some more common types of applications that may be suitable to expedite include:

• return of body corporate property
• access to body corporate records
• change of the financial year-end date for a body corporate.

Importantly, even if a matter falls into one of the above categories, it does not guarantee it will be expedited. The onus will be on the applicant to provide clear grounds supporting why the matter should be expedited. Whether or not a matter is ultimately expedited will depend on the nature and circumstances of the application each time.

Applications may be expedited in various ways. Where there is no actual dispute (for example, seeking to change a body corporate’s financial year-end date) an application can be referred directly to an adjudicator for a declaratory order without asking for submissions.

Other ways of expediting matters may include:

• adjudicators prioritising certain applications over longer-standing ones
• the Commissioner limiting the period for making or replying to submissions (while ensuring procedural fairness remains the primary consideration)
• the Commissioner refusing requests for an extension to submission or reply periods where there are insufficient reasons for the request.

Tips for lodging these types of applications

When lodging an application that falls into any of these three categories, we suggest that you clearly identify the type of application you are seeking.

While there is a specific section that must be completed in the adjudication application form (form 15) when seeking an interim order, there are no specific sections where you can state why it should be expedited or for emergency expenditure applications.

If you are posting a hard copy of your application form to our office, we recommend including an additional cover letter highlighting the type of application sought. Alternatively, if you are sending your application form via email, you should include a clear request in the body (and possibly also the subject line) of the email.

Given the urgency that usually accompanies these applications, taking these small extra steps is a means of ensuring our office is aware of what you are seeking from the start.

We hope this article has clarified the three different paths that are open to you if you believe you have an urgent matter. You must decide which of these options (if any) is most suitable for your application. Having a clear understanding of the available options and relevant criteria will help you to steer clear of the common pitfalls associated with these kinds of applications.

For further information see:

• Practice Direction 16 (interim order applications)
• Practice Direction 18 (emergency expenditure applications)

Practice Direction 19 (expeditable applications)

This article was contributed by – The Commissioner for Body Corporate and Community Management