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Interim orders in the Commissioner’s Office

06 Jun 2016

Download the PDF version here.


Everything in every dispute is usually urgent. This is especially the case if there is any form of emotional involvement in the dispute itself.

In the court system in Queensland, you can stop someone urgently from doing (or not doing) something via an injunction.  These are legal weapons of mass destruction. They are they are usually hard to obtain and always come at a pretty hefty legal cost.

In strata land, there is a watered down version which is called an interim order.  

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

Interim orders are never given lightly.

Threshold requirements

Broadly speaking, adjudicators have held that an applicant must establish each of the following 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 order.

Urgency

An interim order must be warranted due to genuine urgency.  Genuine urgency is not:

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

If it is urgent, then the application itself is urgent.  Lodge one of these applications at your peril if the thing you are complaining about occurred two months ago and nothing has happened since.

Serious legal question

There must be a serious legal question to be tried.

The test for establishing whether a there is a serious legal question to be tried was articulated by the High Court 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.  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.”

This stops 'rubbish' arguments from holding up people from doing what they are otherwise entitled to do.  Framing this is a crucial part of any application seeking an interim order.  A successful application needs to lay out why there is a serious legal issue. 

Balance of convenience

The final thing is that the balance of convenience must favour granting the interim order.  

We are again up to the High Court for guidance which 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.  

Actual evidence of potential harm or damage will be critical in proving to the adjudicator that the balance of convenience favours granting the interim order.  You need to be able to set that out very clearly. 

Conclusion

The onus remains on the applicant to demonstrate each of the above factors.  Missing one of them means that the application for an interim order will likely fail.  

We have acted for many resident managers, committees, lot owners and bodies corporate in making (and defending) interim order applications.  If you require assistance please let us know.

 

 

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