Edgewater Gardens [2003] QBCCMCmr 267 (3 December 2003)

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

I hereby order that the application for an order, so far as it concerns an alleged nuisance by Sylvia Trankalis, the owner of Lot 7, against the applicant, is dismissed.

I further order that the application for an order, so far as it seeks permission to reconstruct the enclosure surrounding my exclusive use car park on the boundaries of the exclusive use area 65, is dismissed for want of jurisdiction.

I further order that the applicant may, at his own discretion and cost, make application to the body corporate for authorisation to erect an enclosing structure on his exclusive use car space under section 124 of the Body Corporate and Community Management (Standard Module) Regulation 1997, and the body corporate must put the relevant motion for decision by way of a "flying minute" voting paper to owners.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0400-2003

"Edgewater Gardens" CTS 10507

The applicant has also made application for interim orders in the same terms as the final orders above.

JURISDICTION:
This application comprises two disputes between an owner (the applicant Clemens of Jia Pty Ltd) and the following: another owner (the first respondent, Sylvia Trankalis the owner of Lot 7) concerning harassment and personal nuisance; the body corporate (the second respondent), concerning the installation of an improvement to common property by a lot owner for the benefit of the owner’s lot.

In regard to the first dispute, the matter of nuisance is regulated by both the legislation and the body corporate by-laws (see section 167 of the Act). It therefore falls within the dispute resolution provisions of the legislation (see section 227(1)(a), section 228(1)(a), and section 276(1)(a) of the Act).

In regard to the second dispute, the matter of owners making improvements to the common property for the benefit of their lot is regulated by the legislation (see sections 114 and 124 of the Act) and this dispute also falls within the dispute resolution provisions of the legislation (see section 227(1)(b), section 228(1)(a), and section 276(1)(a) of the Act). However there is a question of jurisdiction in respect of this second dispute that I need to address initially.

Jurisdiction – Second Order sought re Enclosure of Car Space.
The improvement subject of the order sought is the erection of an enclosing structure around an area of common property used for car parking for which the applicant Clemens has the benefit of exclusive use. Order 231-2000 issued on 1 August 2000 resolved the validity of those allocations of car spaces made on 3 February 1982 under the authority of, and compliant with, By-law 46 recorded on the registered plan on 24 February 1982.
This order was appealed by the body corporate however the appeal was dismissed (see Body Corporate for "Edgewater Gardens" CTS 10507 v. Trankalis & Ors (2003) QDC 19 (21 March 2003)).

The enclosure of the car space was also the subject of a previous application, Application 164-2000, lodged by the first respondent Trankalis for which Order 164-2000 was issued on 10 July 2000. At the time of determination, a wire mesh and garage door enclosed the car space (referred to as "Space 65") and the order required that it be removed. That order was also appealed, by Clemens, and was similarly dismissed (see Clemens v. Henville and Trankalis (Unreported) District Court Southport File Nos.665, 666, and 667/200 (25 October 2001).

As a result of that decision applicant Clemens removed the enclosure. The applicant now seeks an order that he be permitted to reconstruct the enclosure surrounding my exclusive use car park.

It seems the applicant is asking that an adjudicator make a further decision in a matter that has been the subject of an order and an appeal. In the appeal, the Court considered all of the circumstances concerning the presence of the enclosure and determined that the order for it to be removed should stand. Accordingly, in the absence of any subsequent steps taken by the applicant seeking authority for a new enclosure, the current order being sought, if granted, would amount to an interference with the decision of the Court. The decision of the Court must be regarded as being final in determination of the matter of the enclosure.

My above reference to "subsequent steps" is as confirmed in my teleconference with the parties to this dispute, namely Clemens as the applicant and Michael Silver as the representative for the Body Corporate Manager, Stewart Silver King & Burns (Gold Coast) Pty Ltd, for the respondent body corporate, on 30 October 2003. That is, if an owner wishes to make an improvement to a part of the common property over which they have a right of exclusive use, then section 124 of the Body Corporate and Community Management (Standard Module) Reg 1997 ("the Standard Module") requires that authorisation must be by way of a special resolution (if valued over $250).

Neither Order 164-2000 nor the Court decision prevents the applicant from ever enclosing his car space. The applicant now stands in the same position as any other owner wishing to seek the authorisation of the body corporate to an improvement on common property. The circumstances that other owners may have enclosures around their car spaces, as reported by the applicant, does not relieve the applicant of having to seek this authorisation, though it may be a point of argument as to the reasonableness or otherwise of any body corporate decision.

For the above reasons, I consider that I have no jurisdiction to address the application so far as it concerns an order for approving an enclosure to the applicant’s car space, and my order is to that effect. However, given the delay in making a determination and in keeping with other orders addressing disadvantages caused by office delays (in this case general meetings that could have considered a section 124 request), I have included a consequential order (see section 284(1) of the Act) that this matter may be decided outside of a general meeting of the body corporate by way of a "flying minute" if the applicant so wishes. Of course the normal voting entitlements of owners, period of notice, and requirements for a special resolution all must apply, the only difference being that the cost and inconvenience of a meeting is avoided and, in particular, the applicant will not have to await the next general meeting to put his request motion. However, any cost to the body corporate for this flying minute (eg postage, additional fees by the Body Corporate Manager) will have to be borne by the applicant as it not a matter of general benefit to the body corporate but specifically for him. Of course the applicant may chose to put any such request for approval of the enclosure to the body corporate for decision in general meeting.

First Order sought re Nuisance.
This is also a matter that raises the jurisdictional question of whether it can be dealt with by an adjudicator because of a prior order by this office. However, whereas the answer is unequivocal in regard to the enclosure matter, it is not so here and therefore I consider it more appropriate to accept that jurisdiction exists and to deal with the implication of previous dealings under the heading "Determination".

General powers of an Adjudicator in making an order:
Section 276(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 –

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:
This is in respect to the matter of nuisance only. Under section 243 of the Act, a copy of the application was provided to the respondent Trankalis with an invitation to respond to the matter of dispute raised in the application. Trankalis made a comprehensive submission with a large number of supporting attachments, opposing the application.

Because of the circumstances, I do not intend to set out the facts of the matter here as would normally be the case, but to only mention those appropriate in the course of my determination of the matter.

DETERMINATION:
"Edgewater Gardens" was registered as a building units plan (now termed a building format plan) on 27 January 1982 and comprises 62 residential lots. The scheme is regulated by the Standard Module.

The relevant order sought by the applicant against Trankalis concerns both a direct nuisance and an indirect nuisance. In particular, the direct nuisance being that she has no direct contact with me, my partner or any associate of mine, which includes any contractors agents or professional advisers engaged by me, and the indirect nuisance being that she does not incite other occupants in the building to cause nuisance and interference with my or my partners use of our lot and common property.

Two previous orders on nuisance have been made against Trankalis on the application of Clemens, namely Order 743-1999 issued on 8 February 2000 and Order 184-2000 issued on 13 June 2000. Details of these applications and the orders made are as follows –

In the first application, Clemens sought the following order, "An order to have Trankalis refrain from continually sending multipage faxes to my home office." The Statement of Reasons by the adjudicator is to the effect that as Clemens was chairperson whose duties in that capacity start and finish with committee and general meetings, Trankalis should properly communicate with the secretary, and by sending multiple letters to his private residence facsimile machine, she was interfering unreasonably with Mr Clemens’s use or enjoyment of his lot.

Order 743-1999 made in respect of that application reads –

In the second application, the claim of nuisance against Trankalis was more general. The order sought by Clemens was, "This application is to seek your assistance by issuing an order to restrict the disruptive activities of one resident lot owner Ms S. Trankalis of lot 7, Edgewater Gardens, 21 Whelan Street, Surfers Paradise." The Statement of Reasons shows that Clemens complaint was she repeatedly interfered in the daily running of the body corporate, in particular editing extracts of body corporate records by misquoting facts and then distributing them to other owners. While only two owners supported Trankalis’s rejection of the allegations, 20 owners supported the application and the adjudicator set out 12 samples of comments by those owners. The adjudicator found, "I am satisfied that Ms Trankalis’ actions amount to a nuisance, and, further, that she has unreasonably interfered with other owners use or enjoyment of their lots, and of the common property."

Order 184-2000 made in respect of this application states –

This order has a very general application in terms of nuisance, and is founded on the adjudicator’s view that Trankalis had caused a nuisance to Clemens and also others in terms of the extracts quoted above.

In summary, it seems to me that while Order 743-1999 is specific in its reference to creating a nuisance by sending multiple faxes to Clemen’s home, Order 184-2000 has a general application sufficiently wide to encompass those matters complained of in the current application.
That is, rather than make this further application against her, the applicant’s proper course of action should have been to look to the enforcement provisions of the legislation in respect of Order 184-2000 (see section 288 of the Act. This section provides that where a person contravenes an order then the applicant, amongst others, can take a private prosecution action against the person in the Magistrate’s Court where substantial penalties can apply if an offence is found to have been committed.

If I am wrong in that view because Order 184-2000 does not cover the matters now being complained of, or because of the length of time since the order was issued in such a matter as nuisance (though I doubt this), then the evidence of contact is such that I would have in any case dismissed the application so far as it concerns an alleged nuisance. Trankalis has submitted that she has not had any personal contact with Clemens or his partner Mrs Georgeff for several years except when attending annual general meetings. During the teleconference of 30 October 2003 with Clemens and Silver, while I pointed out that I could not discuss the first order because respondent Trankalis was not present (by telephone), Clemens did confirm that he has not had contact with Trankalis for a long time.

Additionally, the supporting grounds by the applicant in this matter comprise a half-page of narrative of general allegations. The allegations are that Trankalis now sends facsimiles and distributes materials in the building through other persons using their own name though Clemens believes she prepares the material. She also allegedly sends large tracts of defamatory material to the body corporate, resident management staff and the applicant’s solicitors. However, there is no supporting evidence to these allegations, whether in the form of statements by others with a direct knowledge of events, or documents of the type referred to. Without supporting evidence the allegations remain just that.

For all of the above reasons I have dismissed the application so far as it concerns nuisance by the respondent.

Number of Scheme:	10507
Name of Scheme:	Edgewater Gardens
Address of Scheme:	21 Whelan Street SURFERS PARADISE QLD 4217

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 contractual matter about –

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Edgewater Gardens [2003] QBCCMCmr 267 (3 December 2003)