Oscar On Main [2002] QBCCMCmr 31 (24 January 2002)

RA MeekREFERENCE: 0506-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24605
Name of Scheme:	Oscar On Main
Address of Scheme:	Corner Stafford Lennie Hughes Avenue MAIN BEACH QLD 4217

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

Peter Balfour and Yvonne Balfour, the owners of lot 93



RA MeekI hereby order that the application by Peter Balfour and Yvonne Balfour, the owners of lot 93, for an order that action be taken by the Body Corporate to issue a future contravention of by-law notice and ensure the caretaker and managers act on complaints according to Clause 4(c ) of the Caretaking Agreement for “Oscar on Main”, is dismissed.

yn
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0506-2001

“Oscar On Main” CTS 24605

The applicants, Peter Balfour and Yvonne Balfour, the owners of lot 93, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Breach of by-laws and action be taken by Body Corporate to issue a future Contravention of by-law notice and ensure the caretaker and managers act on complaints according to Clause 4(c ) of the Caretaking Agreement for “Oscar on Main”.

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 am not in a position to make any assessment of the basis of this dispute, namely the level of alleged noise or disturbance. Such an assessment is impossible since I am not a resident in the building, or able to make an inspection at a time when circumstances might be such that the alleged noise could be expected. I therefore am restricted in my ability to resolve this dispute to aspects of process.

It is clear that over an extended period of time, the applicants have made complaint to the body corporate committee, and the resident manager, regarding the level of noise alleged to be made by the owner / occupier of lot 93, Wayne Sharp. Mr Sharp has not responded to this application, although I have available to me a copy of a letter (of 2 June 2000) written to the secretary in response to complaints made against him.

The order seeks that the body corporate takes action to issue a “future contravention” notice, and further to ensure that the manager acts on complaints, as per terms of the caretaking agreement.

The secretary has responded to the application by way of submission. In the submission, it outlines the complaints received by the applicants, and states that –

On each occasion the committee has addressed these complaints and requested, in writing, that the owner of lot 93 observe the body corporate by-laws and take measures to reduce the inconvenience which may be caused to other occupier. ... Correspondence received from Mr Sharpe on 2^nd June 2000 advised that he had taken measures to remove the noise problem. The committee considered that, in the circumstances, the action taken was appropriate.

It is clear from Mr Sharpe’s correspondence to the secretary that he does not accept the accuracy of the applicant’s allegations, believing that the applicant will “continue to complain REGARDLESS of what action I do or do not take regarding this request”.

The Act and the by-laws are binding on all members of the body corporate (see section 53 of the Act). It is the duty of the body corporate to enforce the community management statement (including the by-laws) (see section 87(1) of the Act). Allegations of by-law contravention should be addressed by the committee in some structured way. For example, on the initial complaint, I suggest the committee should consider the allegation, its reasonableness, and determine an appropriate course of action. What is appropriate might be that the committee or a member thereof writes to the person in alleged contravention and raises the issue with that person, seeking some response. In the instance of a second complaint, I suggest that again depending on the circumstances and the reasonableness of the complaint, the body corporate should make some independent investigation or assessment of the allegation. If some substance to the complaint is established, then the committee should write to the person the subject of the complaint in stronger terms, this time suggesting that if the contravention is not rectified, of the instance re-occurs, the consequence that will follow. In the alternative, the committee might investigate whether the manager (if the manager has the responsibility to enforce by-laws) is taking appropriate action. On the third occasion of a complaint, again the matter must be investigated, but this time with the view to the body corporate committee taking some positive action, for example the issuance of a contravention notice. By-law contravention notices are dealt with in Division 4 of the Act (sections 144 to 146).

However, the above suggested course of action is merely that, a suggestion. The circumstances of each matter will effectively dictate how each matter should be addressed. I will reiterate though that the body corporate (and its committee) does have a responsibility to enforce compliance with the by-laws and the Act. In regard to the Act, all owners or occupiers of lots must comply with section 129 of the Act, which is headed “Nuisances”. That section provides –

129 Nuisances
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.

As I indicated earlier, I am not in a position to determine if there is any substance to the applicants’ complaints. What I can say is that, based on the body corporate’s response to the application, I suggest that this body corporate committee has not taken an overly pro-active approach to the issue. Owners might expect a more thorough investigation of a matter, including whether it is substantiated, from a committee.

Whilst I have reservations as to the extent of action taken by the body corporate regarding the applicants’ allegations, I am not prepared to order as sought by the applicants. To do this would require me to conclude that the applicant’s allegations were substantiated, and for the reasons stated, I am not in a position to do this. For this reason, I intend to dismiss the application.

In regard to ensuring that the caretaker and managers “act on complaints”, this matter is very subjective. Again I am not in a position to determine whether the manager is acting in accordance with the terms of its agreement. However, if the applicants believe this to be the case, then they should solicit the support of a majority of voting owners requiring the committee to take action regarding such alleged non-compliance.
yn