Edgewater Gardens [2000] QBCCMCmr 272 (13 June 2000)

P J HANLYREFERENCE: 0184-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10507
Name of Scheme:	Edgewater Gardens
Address of Scheme:	21 Whelan Street SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
William James Clemens, the company nominee of Jia Pty Ltd the owner of lot 61

I hereby order that the owner of lot 7, Sylvia Trankalis, shall forthwith cease using her lot and/or the common property in such a way as to cause a nuisance or hazard.2n

P J HANLYI further order that the owner of lot 7, Sylvia Trankalis, shall forthwith cease using her lot and/or the common property in such a way as to interfere unreasonably with the use or enjoyment of other lots included in the scheme.

I further order that the owner of lot 7, Sylvia Trankalis, shall forthwith cease using her lot and/or the common property in such a way as to interfere unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

I further order that the owner of lot 7, Sylvia Trankalis, shall forthwith cease communicating with other lot owners/occupiers in the scheme by placing any material or document under the door of any lot; by placing any material or document into the mailbox of any lot; or by affixing any material or document to the door of any lot unless the owner/occupier in question has specifically authorised the said Sylvia Trankalis to communicate with the lot owner/occupier in the manner described.

I further order that a copy of this order be forwarded to all owners at the same time as the next levy notice is distributed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0184-2000

“Edgewater Gardens” CTS 10507

The applicant, William James Clemens, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

This application is to seek your assistance by issuing an order to restrict the disruptive activities of one resident lot owner Ms S. Trankalis of lot 7, Edgewater Gardens, 21 Whelan Street, Surfers Paradise.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that Ms Trankalis has a history of disrupting harmony in the building since she became an owner in October 1987. The applicant further states that Ms Trankalis causes disharmony by interfering in the day to day running of the building, usually over matters which are petty, and which are already in hand. The applicant further states that Ms Trankalis also edits extracts of body corporate records, and distributes this material in writing to the majority of owners in their body corporate mailbox, or by inserting the material under the entry door of the lot. The applicant contends that the edited records are a misquote of facts and have caused recent new owners to take what is considered to be inappropriate action. The applicant further states that contractors have also been subjected to challenge by Ms Trankalis, both verbally and in writing, as to the task being performed by the contractors, even though the contractors have been under appropriate supervision at the time.

Ms Trankalis was invited to respond to the application. In light of the allegations relating to the distribution of material to the majority of owners, 2nall owners were also invited to respond to the application. Submissions were received from Ms Trankalis, and from 21 other owners.

Ms Trankalis opposed the order sought by the applicant, on the basis that it was “malicious and dishonest by omission and unsubstantiated assertions”. Ms Trankalis expressed the further view that the application was “vindictive and manipulative”, and requested that it be dismissed as “frivolous and vexatious”. Ms Trankalis provided a considerable amount of documentation supposedly supporting her assertions, although I found much of it to be irrelevant to the issue with which I am concerned in this application.
The matter to which Ms Trankalis regularly refers in all of her documentation is the car parking within the scheme, and particularly the car parking area which is used by lot 61, the applicant’s lot. That issue is the subject of a separate application, in respect of which this office will make an order in due course. It is therefore inappropriate for me to canvass any of that material, even if I considered it to be relevant to the issue with which I am concerned.

Of the remaining submissions, one submission, by the owners of two lots, is supportive of Ms Trankalis’ actions. These owners state, in essence, that Ms Trankalis is not disruptive, and is, in fact, attempting to protect the interests of the large majority of owners. These owners further state that, in their experience, “all lot owners owe her (Ms Trankalis) a substantial debt of gratitude for her vigilance and sense of concern in attempting to protect the interests of the large majority of lot owners against the self interested activities of a very few lot owners who are costing us all many thousands of dollars in their blinkered, fanatical frenzy to promote their own agendas and to satisfy their own avarice.” These owners conclude their submission by suggesting that “it is the antics of Mr Clemens and his band of cronies who we consider to be taking inappropriate actions resulting in considerable disharmony in Edgewater Gardens, and that Ms Trankalis is again being vilified where she should be applauded.”

The remaining 20 owners express very different views, and are strongly supportive of the application. The common theme is that Ms Trankalis is disruptive, intimidatory and intrusive. A sample of comments follows:

•	“Over several years this woman has persistently caused unnecessary nuisance upon us (the majority of owners), has caused excessive costs to be borne by other innocent owners, and generally has been an intolerable intrusion into our otherwise very peaceful living in this residential building.”
•	“... this latest round of scurrilous disruption is just too ridiculous to contemplate”.
•	“Miss Trankalis employs unacceptable methods e.g. abusive phone calls, unauthorized challenges of trades persons, unsigned facsimiles etc. to circumvent conventional acceptable ways to cope with disagreements or differing opinions.”
•	“The exercise of democratic rights is taken to the extreme by Miss Trankalis.”
•	“Many people in the building have indicated to me that they are sick and tired of the constant barage (sic) of letters and copies of letters placed in their mailboxes or under their doors.”
•	“Since buying my unit in 1991 I have been constantly approached by letters, phone calls and physically by the owner of lot 7/104, Miss S Trankalis. This person is causing much disharmony to many owners, the body corporate committee and the manager and his wife.”
•	“(over the past 18 months) ...we have been subjected to verbal attacks whenever we have encountered Miss Trankalis in the common areas outside our unit ...we have received numerous unsolicited written communications from Miss Trankalis ...all attempts to stop Miss Trankalis delivering these communications, which are either placed under our unit door or in our letter box, have been unsuccessful.”
•	“All we mature owners ask of the Commissioner is that his office order Miss Trankalis to immediately desist interfering with the organization, and peace within the building.”
•	“I submit that Miss Trankalis continual (and sometimes vicious) criticism and allegations have become intolerable and that her voluminous letter, faxes and phone calls to officers and legal representatives of the body corporate could amount to an abuse of process, resulting in the normal functions of the body corporate being severely impeded and its costs being enormously increased.”
•	“Like the majority of longstanding owners I am sick and tired of Ms Trankalis disruptive actions which impact on our quality of life and the running and administration of the building. Over the years I have been subjected to numerous unsolicited correspondence from Ms Trankalis put in my mailbox or under my front door. Usually marked Urgent. Fearing retribution I have not protested. This is the type of person we are dealing with.”
•	“I have only been an owner resident in the above building since September 1999. During this time I have on a number of occasions received photocopied correspondence under my front door from Ms Trankalis.”
•	“I wish to fully support any application to curtail this nuisance; hopefully, once and for all.”

Section 129 of the Act provides as follows:
ú

Nuisances

129. The occupier of a lot included in a community titles scheme must

not use, or permit the use of, the lot or the common property in a way

that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot

included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common

property by a person who is lawfully on the common property.

On the basis of the material before me, which has come from almost a third of all owners in the scheme, I am satisfied that the applicant’s complaint is not an isolated one, and that Ms Trankalis has caused considerable disruption to many owners in this scheme. On that basis, therefore, I am not persuaded by Ms Trankalis’ argument that the application is malicious, dishonest, vindictive, manipulative, frivolous or vexatious. As I have stated earlier, the issue concerning car parking will be decided on a different application, and I have disregarded any material on that issue in this application.

I do not consider that owners should be subjected to the barrage of material which emanates from Ms Trankalis and which she places under their front doors or into their mailboxes. I also consider that owners should be able to venture outside their lots without being accosted by Ms Trankalis. The proper process for ventilating issues about which an owner may have concerns is for those issues to be placed on the agenda of a general meeting, so that all owners have the opportunity of voting on the issue. In this way, material can be circulated through the proper channels. Ms Trankalis’ actions may be seen as praiseworthy by a minority of owners, but it is clear that a far greater number of owners are significantly aggrieved by such actions. I am satisfied that Ms Trankalis’ actions amount to a nuisance, and, further, that she has unreasonably interfered with other owners use or enjoyment of their lots, and of the common property. I have ordered that she immediately desist from such behaviour. I have further ordered that a copy of this order be distributed to all owners at the same time as the next levy notice is distributed, so as to minimize the costs associated with its distribution.

Ms Trankalis should also be aware of the provisions of section 235 of the Act, which provides as follows:
ú

Failure to comply with adjudicator’s order

235.(1) A person who contravenes an order under this chapter (other than

an order for the payment of an amount) commits an offence.

Maximum penalty—400 penalty units.

(2) A proceeding for an offence under subsection (1) (other than a

proceeding taken by the Attorney-General) may only be taken by the

applicant for the application for the original order, or the body corporate.

(3) Costs awarded against a defendant in a proceeding under this section

may include the amount of the fee paid to the commissioner on making the

application for the original order.

(4) In subsection (3)—

“application for the original order” means the application for the order of

an adjudicator for the purposes of which the order mentioned in

subsection (1) is made.

The value of a penalty unit is $75.00 (section 5(1)(b) of the Penalties and Sentences Act 1992).