Vila Hermosa [2003] QBCCMCmr 387 (17 February 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0599-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27968
Name of Scheme:	Vila Hermosa
Address of Scheme:	28 Keona Road McDOWALL QLD 4053

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David John Deane and Doreen May Deane, the occupiers of lot 15

RA MeekI hereby order that the application by David John Deane and Doreen May Deane, the occupiers of lot 15, for orders that -

1.	The body corporate for Villa Hermosa to apply and enforce the by-laws for Villa Hermosa without fear or favour;
2.	The body corporate for Villa Hermosa seeks an explanation from Mr White in regard to the submission by Ms McGovern;
3.	We are seeking the body corporate for Villa Hermosa give notice to Ms McGovern, the adult male we believe to be the partner of Ms McGovern and two young males, we believe to be the children of Ms McGovern and all residents of Villa 21, for continuing contraventions of section 129 of the Act. We do not know the names of the adult male and the two young males,

is dismissed under section 220 of the Body Corporate and Community Management Act 1997 on the basis that it is vexatious and without substance.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0599-2002

"Vila Hermosa" CTS 27968

The applicants David John Deane and Doreen May Deane, the occupiers of lot 15, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We are seeking the following orders:

1.	The body corporate for Villa Hermosa to apply and enforce the by-laws for Villa Hermosa without fear or favour;
2.	The body corporate for Villa Hermosa seeks an explanation from Mr White in regard to the submission by Ms McGovern;
3.	We are seeking the body corporate for Villa Hermosa give notice to Ms McGovern, the adult male we believe to be the partner of Ms McGovern and two young males, we believe to be the children of Ms McGovern and all residents of Villa 21, for continuing contraventions of section 129 of the Act. We do not know the names of the adult male and the two young males.

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)).

The application

This application is the fourth application made by the applicants in the period between June and November 2002. On 11 June 2002, this office received three applications which were allocated the numbers, 347, 348 and 349 of 2002 respectively. The respondents to these three applications were the occupiers of units 24, 17 and 23 respectively. On 21 October 2002, application 349 of 2002 was withdrawn by the applicants as the named respondent had "terminated their tenancy at Villa Hermosa". On 15 November 2002, applications 347 and 348 of 2002 were dismissed by the Adjudicator.

On 18 November 2002, three days following the dismissal of applications 347 and 348, the current application was received. The current application is very similar to the previous three applications in both style and tone.

Section 220 of the Act provides –

220 Investigation by adjudicator
(1) The adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application.
(2) However, the adjudicator may, without investigation, make an order dismissing the application, or may end an investigation and make an order dismissing the application, if it appears that--
(a) the adjudicator does not have jurisdiction to deal with the application; or
(b) the application is frivolous, vexatious, misconceived or without substance.
(3) When investigating the application, the adjudicator--
(a) must observe natural justice; and
(b) must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application; and
(c) is not bound by the rules of evidence.

I intend to dismiss this application on the basis of section 220(2)(b); I conclude that the application is vexatious and without substance.

The first order sought by the applicant is that the body corporate apply and enforce the by-laws. Many, if not most of the allegations made by the applicants were canvassed, and dismissed, in applications 347 and 348 of 2002. I consider that the Adjudicator in the two previous applications sufficiently canvassed the issues regarding by-laws, both observance and enforcement. Nothing the applicants have alleged in their current application has dissuaded me from the conclusions reached by the previous Adjudicator regarding these aspects. If anything, I consider the applicants are in fact seeking to again raise issues which were fully canvassed and dismissed by the Adjudicator in the previous applications. If the applicants do not accept the findings of the previous Adjudicator, their option was to appeal the orders in question; not to make further applications to this office on essentially the same basis.

The second order sought by the applicants seeks "an explanation from Mr White in regard to the submission by Ms McGovern". This issue arises in consequence of a submission made by Ruth McGovern dated 6 July 2002 in response to the earlier applications. In that submission, McGovern concludes "Management has suggested that we write to you in an effort to resolve this situation".

The applicants smell a conspiracy or discrimination against them in the reference by McGovern to the manager’s alleged suggestion to McGovern regarding the early dispute. The applicants want "an explanation of this aspect", including whether White condones "malicious slander of a resident by another resident".

I have no intention of investigating this allegation. The applicant’s suggestions or implications regarding this aspect are without merit. Moreover, the applicants are seeking to use the application process in order to have an aspect of the process undertaken in a previous application investigated. Personally, I consider the manager’s suggestion to an occupier to make a submission to be a positive one. I refuse to ascribe improper motive, conspiracy or discrimination to this.

Finally, the applicants seek that the body corporate "give notice to Ms McGovern" and other residents of Villa 21 "for continuing contravention of section 129 of the Act". In part of their grounds, the applicants state –

We have had cause to approach previous and present on-site management several times regarding the obscene language and behaviour exhibited by a young male person we believe to be the son of Ms Ruth McGovern, villa 21. We believe these complaints and the action we have taken by seeking orders against other residents (your refs: 0347-2002 & 0348-2002 refer) was the catalyst for Ms McGovern to support those residents by submitting a malicious fabrication to the Office of the Commissioner for Body Corporate and Community Management.

It seems to me that the current application so far as it relates to McGovern has been precipitated by McGovern having made a submission to the previous applications. To this extent, and in the context of other factors (including that this is the fourth owner or occupier the applicants have made allegations against, and that this application was made three days after the dismissal of two earlier applications), I consider the applicants conduct in submitted this application to be vexatious. I have dismissed this application for the above reasons. I suggest that perhaps it is time for the applicants to consider how their own conduct might affect others in the scheme.
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