Property & Planning Law

Interim orders in the Commissioner’s Office – more than just urgent circumstances

There are a number of disputes that can arise in the context of community living. In some instances, the nature and urgency of the circumstances are such that an interim order from the Commissioner’s Office is required.    

The purpose of an interim order is to put an action on hold or to maintain the status quo until the substantive issues in dispute can be further investigated and resolved.

For example, a motion may pass at a general meeting that involves the body corporate entering into a contract. If there is evidence of serious procedural defects in the general meeting or the motion is obviously unreasonable, an adjudicator may grant an interim order preventing the implementation of the motion until such time as the matter can be properly investigated. Accordingly, interim orders can be an effective tool in preserving rights or preventing harm in precarious circumstances.

Threshold requirements
Broadly speaking, adjudicators have held that an applicant must establish the following three factors in order for an interim order to be granted:

  1. The circumstances are urgent;
  2. The application raises serious legal questions; and
  3. The balance of convenience favours granting the interim orders.

Firstly, an applicant must demonstrate that an interim order is warranted due to genuine urgency and not:

  • A desire to simply expedite the matters in dispute; or
  • Urgency that has only been created due to the applicant’s own delay in lodging the application.

Serious legal question
Secondly, the applicant must prove that there is a serious legal question to be tried. This means demonstrating that there is an arguable case. 

The test for establishing whether a there is a serious legal question to be tried was articulated by the High Court in Australian Broadcasting Corporation v O’Neill(2006) 227 CLR 57 and is:

“…whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the plaintiff will be held entitled to relief.”

Interim orders essentially have the effect of preserving the status quo until the matter can be finally determined. The court in Australian Broadcasting Corporation stated that, for an interim order to be granted, there is a general requirement that an applicant establish:

“…a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.”

Balance of convenience
Thirdly, the balance of convenience must favour granting the interim order.  On this point, the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 stated that this test involves an inquiry as to:

“…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

To put it simply, this step involves demonstrating to an adjudicator that, as the applicant, you are likely to suffer greater harm or inconvenience if the interim order is not granted compared to that which the respondent will suffer if the interim order is granted.  

Any evidence of potential harm or damage will be relevant in proving to the adjudicator that the balance of convenience favours granting the interim order. 

Interim orders will not be granted unless the adjudicator is satisfied that they are necessary due to the nature and urgency of the circumstances to which the application relates. In each case, the onus is on the applicant to demonstrate there is genuine urgency and that the factors discussed above are adequately made out. 

As stated above, interim orders are an essential tool that can be used to protect important rights of an applicant (whether they are a lot owner, occupier, caretaker or the body corporate). Accordingly, it is important that any application for such orders is properly argued.

Hynes legal has acted for many owners and bodies corporate in making (and defending) interim order applications. Time is of the essence in interim order circumstances so if you require assistance making or responding to an interim order application, please contact Daniel Wignall, Director - Litigation.

This content is not intended to be a substitute for legal advice.