Wellington Park [2000] QBCCMCmr 543 (24 October 2000)

P G DanielsREFERENCE: 0299-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1025
Name of Scheme:	Wellington Park
Address of Scheme:	131 Ross River Road MUNDINGBURRA QLD 4812

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

Lynn Morshead an occupier of lot 37



P G DanielsI hereby order that the owner of lot 38, Iris Evelyn Ariotti, must refrain from communication with the occupiers of lot 37, Lynn Morshead and her son Cameron, that unreasonably interferes with their use and enjoyment of lot 37.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0299-2000

“Wellington Park” CTS 1025

The applicant, Lynn Morshead, an occupier of lot 37, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

•	Order for cessation of harassment
•	Stop making untrue allegations against my son and myself

Section 223(1) 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, Lynn Morshead lives with her son, Cameron, in lot 37. Conflict has arisen between Mrs Morshead and her son and the owner/occupier of lot 38, Iris Ariotti. The conflict has existed for a considerable period of time.

Mrs Morshead alleges that Mrs Ariotti is making untruthful allegations about her and her son to the body corporate manager, Alex Martini. She also claims that Mrs Ariotti is harassing her and her son.

Mrs Morshead has provided a relatively detailed history of the matter. The conflict commenced as long ago as October 1999. She states that Mrs Ariotti has complained about various matters. However, the main complaint of Mrs Ariotti is the alleged creation of excessive noise in lot 37.

Mr Martini has contacted Mrs Morshead on a number of occasions about the complaints. Mrs Morshead states that Mr Martini contacted her lessor’s agent asking that Mrs Morshead be evicted.

Mrs Morshead gives particulars of alleged harassment by Mrs Ariotti:

“Listed below are some of the verbal taunts that Mrs A has directed at my son:

•	Yelling thru the adjoining Firewall, “Someone call the Doctor- You’re sick, sick, sick!” (this was at 6.30 pm on a Friday evening, I was at home. I went and asked a committee member to come and hear the level of the music that was being played)
•	You’re a baby and you need a dummy
•	You’re a sick boy and you need help
•	You’re evil and your mother is evil, and I’m going to kill you.
•	Your mother is a bad mother
•	While driving away from her unit, (12.45pm Sunday lunchtime) yelling out the window of her car “Yea Yea Yea, you can go for it now”. Cameron & I were both sitting down inside the unit with no music on as we were both reading.

Listed below are a few examples of what has occurred:

•	Our sliding door closing with a bang results in her front door being slammed shut several times.
•	While I was sitting outside talking quietly with a friend at 9.25pm, her bedroom window is slammed several times. This has also occurred when Cameron has been outside talking with a friend.
•	Closing of the 4 Wheel drive back door – resulted with Mrs Ariotti yelling out “Bang Bang”
•	Cameron sifting thru tools in the storage shed resulted in what sounded like two bottles being banged together in her storage shed.
•	Our comings and goings are closed watched, which we feel is an invasion of our privacy.
•	Mrs Ariotti on numerous occasions has confronted Cameron, even though she has been asked not to do so. She only does this when I am not present.
•	Mrs Ariotti will wander outside her unit and if Cameron is sitting outside, she will just stand there and stare at him. (Intimidation)
•	Banging on Camerons bedroom window so loud that neighbours have heard her.

Mrs Ariotti did not make a submission in response to the application.

A submission was received from Mr Martini.

He refers to three problems with Mrs Morshead and her son. However, it is clear from the submission that he views the alleged excessive noise by Mrs Morshead and Cameron to be the greatest problem. He relevantly states:

“The problem with Mrs Morshead is that she has a teenage son with a stereo unit, he plays his stereo of a night and weekends, the stereo bass tone noise (THUMP, THUMP, THUMP) goes through masonry walls or any other walls for that matter. It is not a matter of the volume or loudness of the music but the bass tone that annoys Mrs Ariotti in unit 38, and on a still night the noise carries quite a distance disturbing other residents. I brought this to Mrs Morshead attention one evening, while I was sitting at her dining table trying to resolve this issue, her son had the stereo going in his room with the door closed, I could not hear the music but after 10 to 15 minutes the bass noise started to annoy me.

You can imagine what it is like to have to listen to that noise for hours on end especially of an evening when all you want to do is go to bed. It is a bad state of affair when an 80 year old woman has to try and sleep in her lounge trying to get away from that noise. No wonder she behaves the way she does towards Mrs Morshead and her son. The problem only arises when the lad is left unattended, which is most weekends and a couple of nights per week, she obviously has no control over him once she is out of sight.

I have tried to resolve this dispute but have been unsuccessful. Mrs Iris Ariotti can not stand the noise and said it is affecting her health (Lack of sleep, nerve rash, etc) it's probably true. Wellington Park has been her home for the past 14-15 years and does not want to move, and why should she.

Mrs Lynn Morshead does not or will not accept that her son stereo system is a problem, I had requested that she remove the stereo from the unit but she refuses. I then contacted the rental agent and the owner requesting that the problem be rectified, stop the noise or evict them.”

The question that needs to be addressed is whether the applicant is entitled to the relief sought.

I have detailed above the various allegations of harassment that Mrs Morshead has made against Mrs Ariotti. Mrs Ariotti has not challenged those allegations. In my view, the harassment constitutes a contravention of section 129 of the Act which provides as follows:

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.

I refer in particular to paragraph (b) of section 129. In my view, Mrs Ariotti is unreasonably interfering with the use and enjoyment of lot 37 by Mrs Morshead and her son Cameron. Even if excessive noise is being created in lot 37, it does not justify the behaviour of Mrs Ariotti. I will make an order directing Mrs Ariotti to cease contravening section 129.

I will not make an order about the alleged untruthful allegations that have been made. I do not consider complaints to the body corporate manager, Mr Martini, to be unreasonable. In my view, Mrs Ariotti can complain to the manager or the Committee. If it is found that Mrs Morshead and her son are contravening the by-laws then appropriate action can be taken. That includes the issue of a contravention notice or the making an application to an adjudicator for an order that the contravention of the by-laws cease.

I do want to inform all parties that disputes of this nature are best resolved by the persons involved. In this respect, I note that the applicant has requested mediation with Mrs Ariotti however mediation has not taken place. I can only strongly recommend mediation to all the parties.