Capricorn Gardens [2001] QBCCMCmr 39 (30 January 2001)

RA MeekREFERENCE: 0426-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7544
Name of Scheme:	Capricorn Gardens
Address of Scheme:	33 Claire Road KINGSTON QLD 4114

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

Ralph Bailey, the occupier of lot 1



RA MeekI hereby order that the application by Ralph Bailey, the occupier of lot 1, for orders of an adjudicator regarding two aspects, namely –

• an alleged lack of maintenance of the common property; and

• alleged “abuse and unfair harrassment from several residents, particularly units 10 and 8”,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0426-2000

“Capricorn Gardens” CTS 7544

The applicant, Ralph Bailey, the occupier of lot 1, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) regarding two aspects. The first is an alleged lack of maintenance of the common property; the second is alleged “abuse and unfair harrassment from several residents, particularly units 10 and 8”.

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)).

I undertook a physical inspection of the scheme on Wednesday 24 January 2001. At the inspection, I met with the applicant, Mr Bailey, who showed me around the common property and expressed his concerns to me, and with one other occupier.

At the inspection, the applicant raised concerns relating to leaking guttering and downpipes, broken letterboxes and windows of lots, fence palings, both missing and in need of painting, vermin (rates and mice) in garden waste, leaves in guttering, lack of painting of eves of buildings, eves of buildings dropping; broken gates and garden railings, and brokens lights on common property, amongst other matters. As well, the applicant included in his grounds several photographs to indicate aspects with which he was concerned. I do not understand the basis for inclusion of several of the photographs, or what they indicate.

A submission in response to the application has been received from Barbara Platt, of Complete Body Corporate Management. The submission is signed “body corporate manager and committee member”. The submission addresses the applicant’s grounds under the headings “untidy grounds”, “maintenance on buildings”, and finally “dispute between occupants”.

The submission states that the body corporate employs Phillips Property Maintenance “to mow and tidy the complex”. This is confirmed by the photos supplied by the applicant. Further the submission states that the applicant takes it on himself to “chop back trees and bushes without permission and the mess is left everywhere”. Further, that the applicant has been requested on numerous occasions “not to touch the common property trees etc”. Notwithstanding this, he continued to do so.

I do not intend to restate the manager’s submission regarding maintenance of buildings. However, I note that the applicant has made certain allegations regarding the actions and conduct of the applicant in respect of these matters. The manager does concluded however that –

The owners of this complex do not appear to take any interest in the property as AGM’s are not attended and I have to write to receive a voting paper to run the meeting. There is no input from owners at all. ...

From my inspection, I consider that the common property is currently in a reasonable state of maintenance or repair. Lawns and gardens were tidy and reasonably well maintained for the most part, and I did not see either rubbish or garden waste littering the common property. As well, the buildings appear to be in a reasonable state of repair. Nevertheless it was clear that certain aspects were in need of attention. For example, the fence appeared to be in need of replacement of some palings, and of painting to help protect the timber from the conditions. As well, guttering and downpipes needed some attention, at the minimum perhaps repainting, but potentially repair of holes and the like.

It was clear from the applicant that he has the authority of the owner of his lot to undertake certain maintenance. This includes at least two other lots which are owned by the same owner in the scheme. The applicant indicated repairs and maintenance (eg. repainting of garage doors, guttering and downpipes, and certain other repairs to the pipes draining water from lot 1) that he had undertaken on the authority of the owner of these three lots. Beyond this, the applicant appears to assume a self appointed caretaker role in the complex. It was acknowledged by the applicant at the inspection that he had attended to various aspects involving the common property which he considered required maintenance. The manager alleges that this role actually interferes with the performance of maintenance by employees of the body corporate. There is correspondence to the chairperson from Gary Phillips Property Services Pty Ltd which make this point. That letter states in part –

Our job over the last 12 months has become increasingly difficult due to the tenant in unit 1. He will prune shrubs, trees etc (often not required) and leave the cuttings in large piles scattered around the complex. ...

Light fittings have been rendered inoperable by this tenant making the replacement of globes both difficult and dangerous. This tenant will also adjust the timer to the security lights to suit himself again making it inconvenient and hazardous to other residents.

The repair of motor vehicles in parking bays prevents access to common areas, which need to be mowed at each visit.

My staff and I are also subject to verbal abuse on a regular basis by the tenant in unit 1. ...

At the inspection, the applicant confirmed that the two motor vehicles which were parked on the common property, and which were currently being worked on (and which were definitely not in any state capable of being driven) were his.

It seems to me that the applicant is in many ways responsible for the problems which he complains of. The actions of the applicant creates difficulties for the body corporate, and then he complains of a lack of maintenance, or improper maintenance (ie. putting grass clippings on exposed garden areas as mulch). As an occupier, or even an owner, it is not appropriate to simply undertake unilateral action regarding matters involving the common property which concern that occupier or owner. The correct course of action is for the occupier or owner, but more appropriately the owner, to refer the matter to the secretary of the body corporate, for appropriate action. The body corporate should then deal with the matter either at committee level, or in general meeting.

Now, if as the body corporate manager suggests, owners in this scheme have no real involvement or interest in affairs of the body corporate, then this is a matter which ultimately will affect those owners, or more immediately, their tenants, who, as is the case here, are complaining of a lack of maintenance. However this is not a matter I can do anything about. I cannot require that owners undertake a greater involvement in matters affecting the body corporate for their scheme.

I consider that Mr Bailey should have referred his concerns to the owner of his lot. That owner should then determine whether he wants to address these matters to the body corporate for some action. This may take the form of motions for inclusion on the agenda of a general meeting of the body corporate. I consider that the body corporate principally owes a duty to owners of lots in the scheme and not to occupiers. It is the owner who had certain responsibilities to their tenants (as occupiers of lots) under the terms of any relevant lease agreement.

In the meantime, I suggest that the applicant cease all activities on the common property in respect of which he does not have the approval of the body corporate. It appears this is creating more of a nuisance than a benefit for the body corporate. In particular, he should not interfere with the activities of contractors engaged by the body corporate to undertake certain tasks on behalf of the body corporate.

I now turn to the second part of the order which has been sought; namely that the applicant has been subjected to abuse and unfair harassment from several owners, particularly units 8 and 10.

I have very little information or evidence to support this allegation. The grounds state that the applicant has had a stroke and has difficulty speaking. Some of the residents abuse him and make fun of him, particularly units 8 and 10. The grounds further state that “mediation with other residents who may not understand the problems Mr Laws (aka Mr Bailey) has in communicating. Having a stroke – his speech is affected”. The application attaches various photos of people, but with very little explanation. For example, I have photos titled “Lorraine 10/33 Clare Road Kingston”, “No. 8 1.Boy, 2. Girl, 3. Boy”, “the dog No. 8 in the house”, “10 flat sitting “gossip” Lorraine”, “No. 10 to No. 8 Lorraine “gossip””, and several other photos to this effect. These photos establish nothing.

The applicant refers to the possibility of mediation. If the applicant wishes to pursue this option I recommend that he contact the Department of Justice Community Justice Program on [phone] to seek to arrange a mediation with his neighbours. My understanding is that Mr Bailey only need make a call to this office, and thereafter they will endeavour to arrange the mediation. I have attached a brochure regarding the mediation service with Mr Bailey’s copy of this application.

Concerns were expressed to me however, both in submissions and from another occupier at the on site inspection, that the actions of Mr Bailey regarding the common property were principally the cause of the ill feeling between the applicant and others. If there is any accuracy in this aspect, then I suggest that it is a matter that only Mr Bailey can do anything about.








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