Paradise Green [2002] QBCCMCmr 119 (1 March 2002)

DP GardinerREFERENCE: 0557-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21206
Name of Scheme:	Paradise Green
Address of Scheme:	31 Thrush Avenue PARADISE POINT QLD 4216

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

Mrs Albany Joy Fletcher, the Owner of lot 12



I hereby order that the owner of unit 9 refrain from engaging in conduct that causes a nuisance to the Applicant and from unreasonably interfering with the applicant’s use and enjoyment of her lot and of the common property.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0557-2001

“Paradise Green” CTS 21206

The applicant Mrs Albany Joy Fletcher, the Owner of lot 12, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -
“The order that I am seeking is for the Commissioner to advise Mr. Healy to cease being a Nuisance, and a Hazard on Private Lots, and on Common Property, to members of the Committee, and any other Body Corporate Member as this behaviour has been going on for too long.”

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)).

In the supporting grounds, the applicant states that the respondent has verbally abused her and recently was holding a large knife when they spoke, an action that caused the applicant to think that the respondent looked as if he was going to throw the knife at her or attack her.so she locked her door and called the police.

In his response, Mr. Healy admits verbal abuse has been used by him but says he has been enticed by the applicant who never wants to leave him alone. That admission by Mr. Healy is sufficient to warrant the making of the order sought. It is no defence to the application to assert that the applicant has enticed the respondent. While I can make no finding in relation to the allegation regarding the knife, I should state that the presence of a knife if proven represents violent conduct.

I have read a number of submissions for and against the application that are of little forensic assistance as they contain no direct evidence of conflict between the applicant and the respondent other than to suggest that at times the respondent may have spoken inappropriately to other residents.

In light of the behaviour of the respondent as characterised by his verbal abuse of the applicant, regard must be given to Section 129 of the Act which provides: -

ÿ
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.

On the balance of probabilities, I find that the conduct of the respondent had caused a nuisance to the applicant and constitutes unreasonable interference with the applicant’s use or enjoyment of her lot and/or the common property and order accordingly.

I have made this order reluctantly as any friction between residents ought to be resolved without the need for adjudication. I stress to both parties the importance of co-existing peacefully with other residents.

In the result I make the order sought by the Applicant as set out as follows:

I hereby order that the owner of unit 9 refrain from engaging in conduct that causes a nuisance to the Applicant and from unreasonably interfering with the applicant’s use and enjoyment of her lot and of the common property.


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