INTERIM ORDER - whether an interim order is warranted

1. The application for interim orders is hereby dismissed.

• [1] The applicant, Mr Brown is a 72 year old gentleman living at Stillwater. He is the proprietor of Lot 17. The respondent is the body corporate.
• [2] On or about 13 July 2025, sewerage pipes at Stillwater were blocked, causing significant black water ingress into the applicant's lot.
• [3] Plumbers who attended the site diagnosed the cause of the block as wet wipes flushed down by occupiers of a lot on the upper floors.
• [4] It appears that on or about 15 July 2025 the respondent body corporate commissioned a restoration company to visit the site and provide a report on the damage to be repaired.
• [5] Subsequently, the respondent body corporate wrote to the applicant indicating (among other things) as follows:
  1. The rectification of the damage caused by the water ingress event exceeds $10,000.00, and as a result the respondent body corporate will be making an insurance claim;
  2. There is an insurance excess of $10,000.00 that is payable by the respondent body corporate;
  3. The body corporate's insurance does not cover the damaged carpet and flooring in the applicant's lot. As a result, this cost will have to be met by the body corporate directly;
  4. The respondent body corporate will remedy the damaged internal walls within the applicant's lot; and clean and disinfect all damaged areas within the lot.
• [6] The applicant states that he has been living in rented accommodation for over two months at a cost to the insurance company of around $30,000.00, pursuant to the water ingress event.
• [7] He however complains that the body corporate has been delaying the flooring works which it promised to carry out. He adds that the insurance company is unable to proceed with other repair works until the body corporate rectifies this flooring. As a result, the insurance company has refused to provide further temporary accommodation. The applicant complains that he will in turn be out of pocket thousands of dollars, with negative health impacts considering his age. Accordingly, he requires the works to be completed urgently.
• [8] In these circumstances, the applicant seeks the following final order:

To direct the body corporate to complete the restoration of my unit.

• [9] The applicant also seeks an interim order, which appears to be the same as the final order sought. Under section 9 of the application form pertaining to the interim order sought, he states as follows:

My apartment was flooded with grey and blackwater due to a blockage in the sewrage [sic] pipes, not caused by me, as the body [corporate] chair in the attached emails etc.

• [10] I will determine the application for the interim order in this decision, with the application for the final order to be decided at a later stage after all relevant parties have had an opportunity to make submissions in the interests of natural justice.

• [11] Stillwater Building Units Plans 107230 is a large residential plan which forms part of Hope Island Resort. The Integrated Resort Development Act 1987 ('IRD Act') provides the legal structures for the development of Hope Island Resort and the legal status of Stillwater is as a body corporate under the Act.

• [12] Section 77(1) of the Act sets out the general powers of a referee to make orders, as follows:

A referee may, pursuant to an application of a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel.

• [13] I am satisfied that the application falls within the scope of the dispute resolution provisions in Part 5 of the Act.

• [14] Section 76 of the Act pertains to interim orders. Relevantly, section 76(2) of the Act states as follows:

Where an applicant for an order under section 77(1) states in his or her application that the applicant requests an interim order, the referee may, if the referee is satisfied on reasonable grounds that, by reason of the urgent circumstances of the case, the referee should do so -

(a) make, under this subsection, any order that may be made under section 77(1) with respect to the application; and

(b) before the expiration of 3 months from the date on which it takes effect and upon a further request made by the applicant, renew an interim order that is in force by serving notice in accordance with subsection (6) that the order is renewed.

• [15] A referee may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[1] Accordingly, an applicant must satisfy the referee that serious or irreparable damage would be caused without the interim order.
• [16] An interim order is usually made in the form of a temporary injunction - an order not to do something, pending a final determination of an application.
• [17] In deciding whether an interim order is warranted, referees often adopt the approach taken by courts to considering interlocutory injunction applications.[2] The first issue is whether the applicant has made out a 'prima facie case' or raised a 'serious legal question', in the sense that if the evidence remains as it is there is some probability that the applicant will succeed at the final determination stage. The second issue is whether any inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by any inconvenience or injury which the respondent would suffer if an interim order were granted. Those two issues of serious legal question and balance of convenience are parts of one ultimate question - whether an interim order is warranted - and therefore should not be addressed mechanically or in isolation from one another.
• [18] The questions of law and fact raised by the application do not need to be finally decided at the interim order determination stage, and doing so is not appropriate where the evidence is potentially incomplete, or questions of law require opposing arguments and unhurried consideration.
• [19] Even if the considerations of urgency or balance of convenience favour the applicant, it is not inappropriate for an interim order application to be dismissed if there is little or no prospect of success on the legal arguments and the uncontroversial facts, at the final determination stage.

• [20] Accordingly, the only issue for determination at present is whether an interim order is warranted.

• [21] The applicant has provided sufficient evidence of the urgency of the matter and the hardship he is experiencing following the water ingress event.

• [22] I am also satisfied that the applicant has a prima facie case and has raised a serious legal question pertaining to the responsibility for the damage caused to the applicant's property by the aforesaid water ingress event.

• [23] Ordinarily, an interim injunction should do no more than maintain the status quo for a limited time or until the determination of the main application, usually in the form of a restraining injunction. An interim order in the form of a mandatory injunction, i.e., an order requiring a respondent to do something (as opposed to a restraint) which is not needed to preserve an existing interest of the applicant and which imposes a burden or loss on the respondent is a special case. It is rarely made by courts and calls for particularly careful consideration, with the effect that the balance of convenience is shifted in the respondent's favour (all other things being equal).[3]
• [24] It is pertinent to note that the interim order sought by the applicant in the present application is akin to a mandatory injunction, as opposed to a restraining injunction. The order so sought if granted will not have the effect of preserving the status quo, but of altering it with the effect that it will also finally determine the application (without an opportunity for the respondent to make submissions on the matter).
• [25] Lord Upjohn summarised the requirements for a mandatory injunction in the case of Redland Bricks Ltd v Morris[4] as follows:

1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say "timeo." [Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Co. [1919] A.C. 999, 1005, P.C.]. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.

2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity; it has nothing to do with Lord Cairns' Act or Shelfer's case [1985] 1 Ch. 287.

3. Unlike the case where a negative injunction is granted to prevent the continuance of recurrence of a wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account:

(a) where the defendant has acted without regard to his neighbour's rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. As illustrative of this see Woodhouse v Newry Navigation Co. [1989] 1 I.R. 161;

(b) but where the defendant has acted reasonably, though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity.

So the amount to be expended under a mandatory order by the defendant must be balanced with these considerations in mind against the anticipated possible damage to the plaintiff and if, on such balance, it seems unreasonable to inflict such expenditure upon one who for this purpose is no more than a potential wrongdoer then the court must exercise its jurisdiction accordingly. Of course, the court does not have to order such works as upon the evidence before it will remedy the wrong but may think it proper to impose upon the defendant the obligation of doing certain works which may upon expert opinion merely lessen the likelihood of any further injury to the plaintiff's land. Sargant J. pointed this out in effect in the celebrated "Moving Mountain" case, Kennard v. Cory Bros. & Co. Ltd. [1922] 1 Ch. 265 at the foot of p. 274 (his judgment was affirmed in the Court of Appeal [1922] 2 Ch. 1).

4.If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.

... There may be some cases where, to revert to the simple illustration I gave earlier, the defendant can be ordered "to restore the right of way to its former condition." This is so simple as to require no further elucidation in the court order. But in anything more complicated the court must in fairness to the defendant tell him what he has to do, though it may well be by reference to plans prepared by some surveyor, as pointed out by Sargant J., in the passage in the "Moving Mountain" case to which I have already referred. The principle is summed up by Maugham L.J., in Fishenden v. Higgs & Hill Ltd. (1935) 153 L.T. 128, 142;

"I should like to observe, in the first place, that I think a mandatory injunction, except in very exceptional circumstances, ought to be granted in such terms that the person against whom its is granted ought to know exactly what he has to do."

• [26] More recently, the Supreme Court of Western Australia in Miller v Evans[5] summarised the principles relating to a mandatory injunction as follows:

The basis for an application for a mandatory injunction is that if the plaintiff had taken proceedings at an earlier stage she would have obtained an injunction restraining the defendants from committing the acts in question. However, the imposition of a positive requirement may be more likely to give rise to hardship or disproportionate expense on the part of the defendant. Factors of this type may influence the court against exercising the equitable jurisdiction to enforce a restrictive covenant or to confine the plaintiff to equitable damages in lieu of an injunction. The basic concept is that of producing a fair result and this involves the exercise of a judicial discretion. Shepherd Holmes Ltd v Sandham (1970) 3 All ER 402, 412.

Factors relevant to the exercise of the court's discretion include the extent of the defendants' knowledge of the wrongful nature of his or her acts. In Jaggard v Sawyer (1995) 2 All ER 189, 209 Millet LJ said:

At one extreme the defendant may have acted openly and in good faith and in ignorance of the plaintiff's rights and thereby inadvertently placed himself in a position where the grant of an injunction would either force him to yield to the plaintiff's extortion and demands or expose him to substantial loss. At the other extreme the defendant may have acted with his eyes open and in full knowledge that he was invading the plaintiff's rights and hurried on his work in the hope that by presenting the court with a fait accompli he could compel the plaintiff to accept monetary compensation. Most cases like the present fall somewhere in between.

The hardship that will be caused to the plaintiff by the refusal of an injunction has to be weighed against the hardship that would be caused to the defendant by the grant of an injunction. In this regard, the court must consider the extent to which the injuries suffered by the plaintiff are compensable by an award of damages. Wood v Conway Corporation [1914] UKLawRpCh 36; (1914) 2 Ch 47, 60. However, the normal remedy for a threatened or actual breach of a restrictive covenant is an injunction and the court's power to award damages in lieu of an injunction is discretionary and should be exercised with caution. Leeds International Co-operative Society Ltd v Slack [1924] AC 851, 861. Damages may be a sufficient remedy only if the injury to the plaintiff's legal rights is small, is capable of being estimated in money terms, can be adequately compensated by a small money payment and it would be otherwise oppressive to the defendant to grant an injunction: Shelfer v City of London Electrical Lighting Co [1894] UKLawRpCh 212; [1895] 1 Ch 287, 322; Kelsman v Imperial Tobacco Company of Great Britain and Ireland Ltd (1957) 2 QB 334; Owen v O'Connor (1964) NSWR 1312; Wooloton & Wilson Ltd v Richard Coston Ltd (1917) All ER 483.

Whilst the occasioning of hardship to the defendant is a relevant consideration in the exercise of the discretion to grant an injunction, the mere fact of hardship is not itself sufficient. Hardship will usually only justify refusal of a mandatory injunction if the hardship that would be inflicted on the defendant is disproportionate to the benefit to the plaintiff: Jessica Estates v Lennard [2007] NSWSC 1434 and Sharp v Harrison [1922] 1 Ch 502.

In Wakeham v Wood (1982) 43 P&CR 40, 43 - 45 consideration was given to the difficulties in quantifying the damage where the restrictive covenant breached is one that protects views. In that case Waller LJ said:

The authorities show that in the case of express negative covenants, that is where an agreement has been made and a particular thing is not to be done, an injunction will be granted to restrain a breach. And where a defendant commits a breach of a negative covenant with his eyes open and after notice the court will grant a mandatory order, although there must be some limitation to this practice: eg see per Astbury J and Sharp v Harrison and in that case the Judge found reasons for awarding damages.

The present case does not in my view qualify in any particular with paragraphs 1 to 4 mentioned by AL Smith LJ. Here is a man who has been living in his house for 33 years with a view of the sea protected by restrictive covenant. The defendant purchased the land subject to the restriction with knowledge of it at the time of purchase. He did not make any enquiry of the plaintiff either directly or indirectly, he did not inform his architect of the restriction, he took no notice of his builder telling him of the plaintiff's objection and he put the roof trusses up in spite of letters from the plaintiff's solicitor. A more flagrant disregard of the plaintiff's rights is difficult to imagine. As I have already indicated the Judge concluded that there was a serious interference with the plaintiff's legal right to a view of the sea. I find It difficult to say that where one has a view protected by covenant the denial of that view is capable of being estimated in money terms and therefore it seems to me it cannot be adequately compensated by a small money payment. It no doubt would be oppressive to the defendant if a mandatory injunction is granted against him but that is entirely his own fault for proceeding with the construction in breach of the covenant after warning. (emphasis added)

This is another consideration which will constrain the award of damages in lieu of an injunction. If a court grants damages it in effect licenses the defendant's unlawful act for the future, subject to the payment of compensation to the plaintiff. In Shelfer v City of London Electrical Lighting Co Linley LJ said at 315:

The court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict... Without denying the jurisdiction to award damages instead of an injunction even in cases of continuing actionable nuisances such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them or to lay down rules for the exercise of judicial discretion.

• [27] While I am satisfied that the applicant has made a prima facie case, I am not persuaded that this interim order sought which is essentially the final relief sought in this case, must be granted at this stage without affording the relevant parties an opportunity to make submissions.
• [28] Furthermore, the applicant has also not set out precisely what restoration activities the respondent body corporate must undertake. Even if I were to order the respondent body corporate to restore the applicant's flooring, I ought to have been apprised of the specifications of this work. Without it, any order directing the respondent body corporate to carry out restoration work would to a large degree be meaningless and unenforceable.
• [29] Accordingly, I must dismiss the application for interim orders.
• [30] However, on account of the urgency and the potential for adverse impacts to the applicant's health, I will expedite the process with shorter timeframes for submissions and replies for the application for final orders.

• [31] The application for an interim order is not warranted. However, the application for final orders shall be expedited.
• [32] In the meantime, I urge the respondent body corporate to work towards resolving this dispute with the applicant, especially in circumstances where it has admitted liability.

[2] For general principles see for e.g., Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1

[3] Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (J.D. Heydon, M.J. Leeming, P.G. Turner) (Fourth Edition) (Sydney: LexisNexis Butterworths, 2002) at [21-395]; Bingham & Anor v 7-Eleven Stores P/L [2003] QCA 402 at [106]-[108]

[4] [1970] AC 652 at pp. 665, 666, 667. This case was cited by the Supreme Court of Queensland in Coral Sea Properties Pty Ltd & Batagamma 41 Pty Ltd v Macfadyen [1993] QSC 69

[5] [2010] WASC 127 at [24] to [29]. This case was cited by the Supreme Court of Queensland in BGM Projects Pty Ltd v Durmaz Corporation Pty Ltd [2020] QSC 87