Darren Tee Apartments [2000] QBCCMCmr 641 (7 December 2000)

P G DanielsREFERENCE: 0510-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4462
Name of Scheme:	Darren Tee Apartments
Address of Scheme:	20 Dethridge Street NORTHGATE QLD 4013

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

Sam Dhiraj the owner of lot 2



P G DanielsI hereby order that the application for an order that the occupiers of lot 6 permanently stop making excessive noise otherwise they should be relocated is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0510-2000

“Darren Tee Apartments” CTS 4462

The applicant, Sam Dhiraj, the owner of lot 2, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the occupiers of lot 6 permanently stop making excessive noise otherwise they should be relocated.

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 states that the children of tenants of lot 6 make excessive noise by kicking a ball and skate board riding. He indicates that he has been unable to resolve the problem after talking to the parents of the children and complaining to the body corporate manager, Australasian Body Corporate Management (Qld) Pty Ltd (ABCM). The applicant also complains of vandalism to his property. The applicant does not seek an order in respect of the alleged vandalism. I will not consider that matter further.

By-law 1 of the scheme’s recorded by-laws regulate noise as follows:

“Noise

1.	The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or common property.”

Additionally, section 129 of the Act is relevant. It 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.

ABCM has made a submission that provides substantial evidence about how it has responded to complaints received from the applicant.

Nick Marcon has made a submission on behalf of the occupiers of lot 6. It is stated in the submission that Nick Marcon and his family moved into lot 6 in August 1999.

Nick Marcon then relevantly states:

“I am a full-time student at a University in Brisbane, studying Psychology, and work part-time. My wife does not do paid work. I have two sons; one is 17 years old, the other 13 years old. My oldest son works part-time at a Restaurant, for a minimum of three nights per week. He is a full-time student currently completing year 12 and as you can appreciate, he is very rarely home during the day or in the evenings. Both of my children are well behaved and have not been in any trouble.

.........

a)	Excessive noise

My 17-year-old son is not interested in riding a skateboard or playing in the common area, he is much to interested in using his computer, do his studies and work. My 13-year-old son has a skateboard, including other children in the neighbourhood and from these units. They use either the Toombul Skateboard facility or a complex of flats across the road, under the supervision of an adult. My son does not use his skateboard nor plays in the common area of Darren Tea Apartments. It goes without saying that neither my wife nor I are interested in skateboard riding.

In general, I deny that any excessive noise emanates from my unit or my children. I also mention that the Northgate Primary School is located near by and noise does come from the school.”

Marie Ho states that she has proof from her neighbour that her child does not play on the common property. Kerry Barker has made a submission to the effect that children do not play on the common property.

There is no evidence that supports the allegation of the applicant that the children of the tenants of lot 6 are making excessive noise. Nick Marcon denies the allegation. I find that the applicant has not established his case on the balance of probabilities.

I dismiss the application.