Edgewater Gardens [2000] QBCCMCmr 56 (8 February 2000)

P J HANLYREFERENCE: 0743-1999

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 authorised officer of the owner of lot 61, Jia Pty Ltd

P J HANLYI hereby order that the owner of lot 7, Sylvia Trankalis, shall refrain from communicating by facsimile transmission with William James Clemens, the current chairperson and the authorised officer of the owner of lot 61, Jia Pty Ltd.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0743-1999

“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 –

An order to have Trankalis refrain from continually sending multipage faxes to my home office.

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 continually harasses him by telephone and facsimile. The applicant further states that Ms Trankalis verbally abuses him if their paths should cross in the lift or in the basement carpark. The applicant further states that since he was elected chairperson of the body corporate in May 1998, he has experienced an increased level of attacks by telephone, fax and written documents, from Ms Trankalis.

The respondent, Ms Trankalis, was invited to respond to the application. The submission comprised of 12 pages, and was accompanied by a bound volume comprised of over 200 pages of correspondence and documentation pertaining to all manner of things associated with this scheme.

The relevance of the material to the order sought in this application was extremely limited. I have, however, gleaned from the material that although Ms Trankalis considers the application is “malicious, vexatious and contains a series of falsehoods” she does not deny that she communicates with Mr Clemens, as she considers that “it is more expedient and cost efficient for the body corporate if I send copies to Mr Clemens as chairman...”. Ms Trankalis states that the body corporate has resolved that the committee is to liaise more closely with owners, but she contends that Mr Clemens is selective as to how he liaises with owners, and on what issues.

The committee is the administrative arm of the body corporate. Mr Clemens is the duly elected chairperson. In that capacity, he is charged with the responsibility of chairing all general meetings at which he is present (section 46(1) of the Body Corporate and Community Management (Standard Module) Regulation 1997) and ruling motions out of order in certain circumstances (section 47 of the Standard Module). Otherwise, the chairperson holds no special powers. Owners should, as a general rule, direct all correspondence or telephone enquiries to the secretary, who will, in turn, ensure that the matter is either considered at the next committee meeting, or is directed to another member of the committee who has the responsibility for the issue in question, if that is deemed appropriate. This is not to say that members of the committee should be quarantined from owners. Indeed, harmonious relations between owners and committee members are no doubt best created when there is good communication, but this communication should be reasonable. I am satisfied that committee members should not be subjected to unlimited communication from owners. In particular, I consider that the use of facsimile transmission into a committee member’s private residence should not be expected as of right. If an owner were to communicate with a committee member by mail, then the method of delivery is dictated by Australia Post and the method of collection is dictated by the person to whom the mail is addressed. Similarly, a committee member may choose not to answer their telephone at, or after, a particular time, or may direct the call to an answering machine, or to voice-mail. However, a facsimile machine is usually able to be called at any time, provided that it has not run out of paper, or is not unserviceable for some other reason. Accordingly, it is feasible that a person could be disturbed by the transmission of a facsimile at any time of the day or night. Furthermore, if there is a lengthy incoming transmission, the owner of the machine may be prevented from sending a facsimile.

Section 129 of the Act 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 am satisfied that Ms Trankalis is interfering unreasonably with Mr Clemens’ use or enjoyment of his lot by sending facsimile transmissions to his private residence. In these circumstances, I propose to order that Ms Trankalis refrain from sending such facsimile transmissions in the future. If Ms Trankalis has an issue that she wishes to raise with the committee, then she should direct any correspondence relating to that issue to the secretary. If she considers that she must also bring an issue to the attention of the chairperson, then she should do so by mail.

I have not considered the other matters raised in Ms Trankalis’ submission, as they have no relevance whatsoever to the order sought in this application.