Eleonora Court [2002] QBCCMCmr 502 (15 August 2002)

C G YOUNGREFERENCE: 0736-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10589
Name of Scheme:	Eleonora Court
Address of Scheme:	53 Annie Street

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

the Body Corporate,



C G YOUNGI hereby order that the owner of Lot 6, Rebecca Anne RYAN, must not permit or accept clients from the adjacent Homestead Backpackers Hostel being directed to stay in her lot when accommodation is unavailable to them in the Hostel.

I further order that Rebecca Ryan must cease making unreasonable noise in her lot and on the common property, and must also take all reasonable steps to ensure that invitees do not create unreasonable noise or behave in a manner likely to interfere with the peaceful enjoyment of others in the scheme, including loud music, loud conversation and loud singing during parties held in her lot. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0736-2001

“Eleonora Court” CTS 10589

The applicant body corporate has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) –

1. Stop breaching body corporate by-laws.

2. Provide copies of leasing arrangements or rental agreements.

3. Stop using premises to conduct a business without body corporate permission.

4. Stop disturbing other residents with wild parties & loud noises in the middle of the night.

5. No more rubbish to be strewn on stairwells or common property.

6. Rubbish in bins to be placed where they can be collected (or pay service fee) & turn off balcony lights when not in use.

7. No dogs allowed on or in premises.

JURISDICTION:
This is a dispute between the body corporate, as the applicant, and an owner, Rebecca Ryan of Lot 6 as the respondent, alleging breaches of the legislation and the body corporate by-laws. These are matters that fall within the disputes resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under the provisions of section 194 of the Act, a copy of the application was provided to the respondent, and copies of the application were caused to be provided to all owners, inviting the respondent and other owners to respond to the matters raised in the application.

The respondent made a submission through her lawyers, Herd & Janes Lawyers of South Brisbane, and four owners representing 5 lots also made a submission. Of the remaining two owners, Rehbein of Lot 2 made no response, while the respondent’s father, Owen Ryan, who is the respondent in a similar application by the body corporate, Application 7-2002, is the owner of Lot 1. Owen and Rebecca Ryan have lodged a joint submission to the respective applications.

As many of the matters raised in this application are of a social nature (late night noisy parties, bad language, incorrect disposal of rubbish, etc), it was considered that all or most of the matters could be best resolved by mediation between the parties. The application was referred to the Dispute Resolution Centre of the Department of Justice and Attorney-General who contacted the parties. While the body corporate, through its chairperson Sam Tornatore, was willing to attempt mediation, the respondent Ryan did not respond. The dispute was returned to this office and the applicant has asked that it be resolved by Departmental adjudication.

As the application seeks a number of orders, it will save duplication if I address the arguments of the parties under “Determination”.


DETERMINATION:
I shall deal separately with each of the orders sought. As a preliminary comment, it appears to me that the core of the problem is the noisy and disruptive behaviour of the respondent and her tenants and invitees, and the placement of overflow clients from the adjacent backpacker hostel owned by Owen Ryan, in his and her lots. It seems that most of the orders sought relate back to this central problem and I have therefore made my comments with that in mind.

1.	Stop breaching body corporate by-laws.

This is meaningless in itself as an order. Some of the following orders sought appear to be breaches of specific by-laws though most also involve prohibited behaviour under the legislation itself.

The legislation itself provides that owners and tenants, and visitors, are bound by the by-laws. The legislation also sets out a mechanism for bodies corporate to take action against offenders by the service of a contravention notice outlining the particular by-law being breached. If the offender does not remedy the breach (eg stop the noise, or continue to throw rubbish on the common property), then the body corporate may prosecute the offender for non-compliance in the local Magistrates Court. The body corporate has issued a number of such notices but does not appear to have prosecuted any instances of non-compliance. I note that at least in one case, the tenant refused to give his name to a process server, making prosecution difficult. I shall deal with the particular breaches of by-laws under the appropriate following item.

2.	Provide copies of leasing arrangements or rental agreements.

Section 142 of the Act provides that if a by-law is inconsistent with this or any other Act, then the by-law is invalid to the extent of the inconsistency.

Section 140 of the Standard Module regulations provides that an owner must disclose to the body corporate the details of the agent engaged to let or lease a lot, and the details of a lessee of a lot where the lease is for 6 months or more. The respondent has submitted that she has not entered into such a lease in respect of her lot, and therefore there is no requirement to disclose details. The body corporate has offered no evidence to the contrary and therefore I make no order in this matter.

3.	Stop using premises to conduct a business without body corporate permission.

The body corporate committee is of the belief that any overflow of clients from the backpackers hostel next-door, Homestead Backpackers Hostel, owned by Owen Ryan, is accommodated in either Lot 1 or 6. By-law 18 of the body corporate by-laws states –

“18. Occupation and Use of Premises. No business of any description is to be conducted from the premises or from anywhere within the perimeter of the Body Corporate without prior written permission from the owners and the Body Corporate.”

Apart from the information provided by owners having seen clients entering Lots 1 and 6 from the hostel from time to time, the Brisbane City Council in its letter of 9 July 2001 to owner Maureen Anderson says that the hostel manager had said that backpackers do stay in Lots 1 and 6 but for terms longer than the 2 week (general) threshold defining backpacker accommodation. Stays of longer than two weeks are not classed by the Council as “short term” but “multiple dwelling” for which the scheme is approved.

It would be difficult for the body corporate to know of, let alone establish, whether a resident in either of the lots is a short term occupier or not. In any case, even if the clients are longer term residents (longer than 2 weeks) and the lot owner is not in breach of the Council “short term” use/backpacker regulations, the practice is still subject to the application of the body corporate by-laws. The core question then is whether the practice of accommodating clients from the hostel into a scheme lot is the conduct of a business in breach of By-law 18.

Firstly, section 131(1)(b)(i) of the Act provides that a by-law may provide for the “regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme”. A by-law such as By-law 18, requiring the prior consent of the body corporate to the carrying on of a business from a lot, is therefore within the power of the body corporate to make.

Secondly, a backpacker hostel is a business in the general sense and therefore within the meaning of that term as it is used in By-law 18. The renting of a lot in a scheme lot for whatever term is not normally the carrying on of a business. However the situation here is not the normal renting of a lot by an owner to different persons for different periods of time, but the placement of clients unable to be accommodated in the hostel to scheme lots, and is therefore, to my mind, merely an extension of the business into the scheme. The fact that the lots where the overflow clients are placed are also owned by the hostel owner or his daughter, only supports my belief that this is an extension of the business into the scheme. Accordingly, in my opinion, the accommodation of such persons in the scheme comes within the meaning of conducting a business in a lot within the meaning of By-law 18.

In the case of Owen Ryan, this is a direct extension of his business into Lot 1. In respect to the respondent Rebecca Ryan, this practice is allowing her father to carry on business in her lot and she therefore is a principal party to the practice and must cease making her lot available for the purpose. Both then are in breach of the by-law.

I have made a specific order to this effect, however if it so chooses, the body corporate can proceed with an action against either of the owners as a breach of the by-law where it can show that a hostel client has been relocated to the relevant scheme lot, perhaps referencing these reasons. Alternatively, it can proceed under section 235 of the Act for non-compliance with the order.

4.	Stop disturbing other residents with wild parties & loud noises in the middle of the night.

By-law 1 of the body corporate by-laws provides that an owner or other occupier cannot create any noise likely to interfere with others occupying or lawfully on the scheme. The by-law makes specifics prohibition regarding noise by musical instruments, television and the like. Section 129 of the Act also provides that they cannot use a lot so as to cause a nuisance (which includes noise) or interfere unreasonably with another’s use or enjoyment of their lot.

From the information before me from a number of owners, I am satisfied that persons occupying Lot 6 have caused unreasonable noise by loud music and loud conversation/singing late at night through to the early hours of the morning, and in doing so are in breach of the by-law and in contravention of the legislation.

The difficulty here is that the body corporate often does not know the names of the offending persons. In practical terms it makes action difficult. However, my order in regard to the relocation of hostel clients may reduce the noise problem.

There is some evidence that the respondent Rebecca Owen has herself been involved in some of the parties, in which case the body corporate has the ability to serve a contravention notice and prosecute her if she breaches the by-law again. Additionally, the body corporate may consider proceeding in appropriate circumstances under By-law 6, which states –

“6. Behaviour of Invitees. A proprietor of a lot shall take all reasonable steps to ensure that his/her invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or any person lawfully using common property.”

I note also that owners have from time to time telephoned the Police regarding late parties and this is correct practice as the Police have a duty to control such nuisances.

5.	No more rubbish to be strewn on stairwells or common property.
6.	Rubbish in bins to be placed where they can be collected (or pay service fee) & turn off balcony lights when not in use.

The incorrect disposal of rubbish onto common property by a resident owner or occupier is a breach of By-law 8 of the body corporate by-laws which states –

8. Depositing Rubbish etc on Common Property. A proprietor or occupier of a lot shall not deposit or throw upon the common property and rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using the common property.

Also, By-law 12 (which I won’t quote) regulates the orderly disposal of rubbish in the use of garbage bins. It also extends By-law 8 by prohibiting the throwing of general rubbish and particular items (eg cigarette butts) out of windows and doors.

Owners have submitted evidence of occupiers of Lot 6 strewing butts and rubbish in the stairwell and on the common property outside the lot, and of plastic bags of rubbish left alongside an already full garbage bin. The body corporate should police this matter by by-law breach action as described previously, however if this is unsuccessful then it should look to section 121 of the Standard Module which allows a body corporate to carry out an obligation of the owner or occupier of a lot, and recover the cost of the action against the owner.

Turning off lights is a small matter I will leave to the body corporate – perhaps a time switch could be installed if necessary.

7.	No dogs allowed on or in premises.

This refers to an incident that took place in late 2001 where the respondent had a dog on the scheme without the prior consent of the body corporate required under By-law 14. The applicant does not state that this is a continuing matter so I shall leave it for the body corporate to action as the occasion arises.

In summary, I have made my order for the foregoing reasons. The order made in respect to Application 7-2002 is similar, as the same sorts of problems have arisen in respect of the respondent’s father lot, Lot 6. It is disappointing that the respondent failed to respond to the invitation to mediate the matters as that is a more appropriate way of resolving problems of a social nature such as noise, rubbish etc, rather than the heavy hand of an order.