Banksia Place [2000] QBCCMCmr 386 (31 July 2000)

CG YoungREFERENCE: 0228-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11698
Name of Scheme:	Banksia Place
Address of Scheme:	42 Tallow Wood Drive MAROOCHYDORE QLD 4558

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Kenneth Noel MURPHY, the owner of Lot 8,



CG YoungI hereby order that the application by Kenneth Noel MURPHY of Lot 8 for an order 2nthat the occupiers of Lot 1, Henry Koby and Chanelle Kelly, and children in their care, comply with the by-laws of the body corporate, stop trying to injure him, and keep off Lot 8, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0228-2000

“Banksia Place” CTS 11698

The applicant, Kenneth Murphy of Lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“1. The two children in unit no 1 should not play, scream, and yell in the yard or visit other units and play, scream and yell.
2. The boy in unit no 1 should be stopped from trying to injure me.
3. The same children should be kept off my property.

4. The tenants in unit no 1 should be ordered to abide by the by-laws with no exception.”

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)).

The applicant provides the following examples of events to support the orders he has sought -

1.	The man and the woman from unit 1 have threatened and abused him.
2.	The two children from unit 1 yell and scream in the yard while, for example, playing cricket.
3.	The boy from unit 1 has made two attempts to injure him.

The applicant states that as a consequence of these events, he is forced to leave the units every day and to keep the windows and doors of his unit closed all the time.

A copy of the application was forwarded to the occupiers of Lot 1 and to the body corporate2n secretary for distribution to all owners. In their response, the owners of Lot 1 question the applicant’s noise level tolerance and counter that he has himself upset a number of the occupiers. They state that they have had no problems with their tenants who occupy their unit.

Mr Koby, an occupier of Lot 1 has submitted that Mr Murphy has continually made various complaints about Ms Chanelle Kelly (the other occupier of Lot 1) ever since she first occupied this unit. He has stated that no other occupier has complained about their behaviour or that of their children. He confirms that a child has Downs Syndrome but that he is incapable of showing malice towards the applicant or anyone else. Both the owners of Lot 1 and Mr Koby have submitted that Mr Murphy is the only owner/occupier in the block and that the other lots are mostly occupied by families with children of various ages.

The fact that only the owner of Lot 1 and Mr Koby have responded to this application makes it extremely difficult for this matter to be resolved under the process of adjudication. The matter would have been more properly dealt with by a referral to mediation for a trained mediator to facilitate some compromise in behaviour between the parties. As it is, the applicant has made certain allegations which have not been corroborated by any other owner in the scheme. The owner of the Lot 1 and Mr Koby have refuted most of the allegations and in return have made statements against the behaviour of the applicant. Given these circumstances, it is impossible to obtain an objective view of the problems which may be experienced, not only by the applicant, but by the respondents and other occupiers of lots in the scheme as well. There is simply no evidence to confirm the applicant’s allegations. For these reasons I am not satisfied that the respondents are breaching provisions of the legislation such as would require an order against them. Therefore, I have dismissed that application.

Mr Murphy has also sought orders in respect of potential personal injury and trespass. I would suggest to the applicant that if he is physically threatened or injured, or his property is trespassed, he seek legal or notify the Police. There is information that he has involved the Police in the past.

Even though I have dismissed the application, I consider that it would be beneficial for all parties involved in this matter if I outline the legislative rights and obligations of both owners and occupiers of lots. The members of the body corporate are the owners of all lots in the scheme. Section 37(1) of the Act states that the common property is owned by the owners of lots in the scheme as tenants in common. Section 37(4) of the Act provides that if “the occupier of a lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier”. Section 114 of the Act then provides that the body corporate administers, manages and controls the common property, but must do so reasonably and for the benefit of owners. The legislation empowers a body corporate to make by-laws for this purpose, by-laws which are binding on lot owners and on occupiers who are the owners of a lot.

The by-law relating to noise for this body corporate is as follows:

1. Noise. A proprietor or occupier of a lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or any person lawfully using common property.

The Act has set up a process that allows the body corporate to manage compliance with by-laws. The by-law contravention provisions of the Act empower a body corporate to serve a continuing or future contravention notice on an owner or occupier who it reasonably believes is or has contravened a provision of the by-laws. A by-law contravention notice can be enforced through the Magistrates Court, with a Magistrate imposing a financial penalty for any failure to comply with a notice. It appears that the body corporate has taken this course of action; the body corporate employs a Body Corporate Manager who should be familiar with this process..

Section 129 of the Act also contains general provisions regarding nuisance and states:

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.

In summary, the legislation provides mechanisms for a body corporate to make by-laws regulating common property and the use and enjoyment of lots, and for the body corporate to enforce those by-laws. The Act provides the occupier of a lot with rights, but also with the responsibility to act in a way which does not unreasonably interfere with another occupier’s use of their lot or the common property.

The problems being experienced in this scheme have reached an unhappy and potentially dangerous stage. For this reason alone, I would urge the applicant and the respondents to try mediation as an means of resolving the dispute. The Department of Justice includes a Dispute Resolution Centre which has trained mediators for resolving social matters of this type. They can be contacted on Freecall 1800 017 288 by callers outside Brisbane. Either the applicant or the respondent occupiers could telephone for advice.