Views Over Lamington [2003] QBCCMCmr 65 (15 August 2003)

Last Updated: 17 May 2005

P J HANLYREFERENCE: 0598-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2712
Name of Scheme:	Views Over Lamington
Address of Scheme:	45 Lamington Terrace DUTTON PARK QLD 4102

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Robyn Barbara Lucienne, the owner of lot 5

I hereby order as follows:

1) that the owners of lot 3, Thaer Abu-Dabat and Fatima El-Esh, shall immediately cease parking vehicles, or allowing vehicles to be parked, on common property.
2) that the owners of lot 3, Thaer Abu-Dabat and Fatima El-Esh, shall immediately remove any items owned by them which are unlawfully stored in the garage of lot 5 or on the common property.
3) that the owners of lot 3, Thaer Abu-Dabat and Fatima El-Esh, shall immediately cease harassing the applicant.
4) that the owners of lot 3, Thaer Abu-Dabat and Fatima El-Esh, shall immediately cease depositing rubbish on common property.
5) that the owners of lot 3, Thaer Abu-Dabat and Fatima El-Esh, shall ensure that their household garbage is disposed of in an appropriate receptacle as required by the Brisbane City Council, and that it is fully contained within that receptacle.
6) that the owners of lot 3, Thaer Abu-Dabat and Fatima El-Esh, shall within 1 month of the date of this order, and at their expense, apply appropriate waterproofing to the tiles in their lot to ensure that water cannot escape from their lot into the applicant’s garage.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0598-2002

"Views Over Lamington" CTS 2712

The applicant, Robyn Barbara Lucienne, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the owners of lot 3, Thaer Abu-Dabat and Fatima El-Esh, comply with the by-laws in relation to noise, parking, obstruction of common property and depositing rubbish on common property.

Section 276(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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

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

In the supporting grounds, the applicant stated that she has had numerous problems with the owners of lot 3 relating to their breach of body corporate by-laws. The applicant provided a detailed history, together with supporting statements of previous tenants in the scheme, and a further statement of a friend who visited her at the scheme. The applicant also provided photographs of overflowing rubbish bins, rubbish strewn over the common property, furniture littering the footpath and assorted items apparently stored in a garage area.

The owners of lot 3, (the respondents) were invited to respond to the application. In a submission dated 17 January 2003, the respondents denied that they make too much noise, and further denied that they or their visitors ever verbally abuse the applicant. The respondents stated that they do not park their vehicle near the applicant’s garage. They contend that the applicant has sufficient room to get her vehicle out of her garage, but claim that she simply cannot drive very well. The respondents do not deny that they park on the common property.

In relation to rubbish, the respondents state that the applicant has no right to look through their rubbish bins, and point out that they are allowed to put whatever rubbish they like into their bins. They also point out that they have had no complaints from the Brisbane City Council. From the photographs provided by the applicant, it is apparent that she would not have had to examine the contents of the respondents’ bins to determine what sort of rubbish was deposited in them, as the bins were overflowing onto the footpath. However, whilst the respondents may be correct in stating that they can deposit whatever household rubbish they wish into the bins, they must ensure that the rubbish is properly contained in the bin, and that it does not spill out onto the footpath.

The respondents made no comment on the applicant’s claims in relation to the items allegedly left on the common property. They did respond in relation to the alleged water penetration into the applicant’s garage, and stated that the moisture is going through the tiles in their kitchen when they defrost their freezer every 6 months. The respondents claim that nothing much can be done about this. Section 120 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) provides as follows:

120 Obligations of owners and occupiers--Act, s 122

(1) An occupier of a lot included in the scheme must keep the parts of

the lot readily observable from another lot or common property in a clean

and tidy condition.

(2) The owner of a lot included in the scheme must maintain the lot in

good condition.

(3) The owner’s obligation under subsection (2) to maintain the lot in

good condition does not apply to a part of the lot the body corporate is

required under this regulation to maintain in good condition.

(4) The owner of a lot included in the scheme must maintain the utility

infrastructure within the boundaries of the lot, and not part of common

property, in good condition and, if it is in need of replacement, must

replace it.

(5) This section applies only to a lot that is not a community titles

scheme.

The respondents must maintain their lot in good condition, and if water can escape from their lot into another lot, then they have failed to do so. I have not been provided with sufficient evidence to justify the applicant’s ambit claim in relation to labour, a damaged dictaphone and water damaged books, and I do not therefore propose to make any order in respect of same. However, the respondents must take appropriate steps to ensure that water cannot escape from their lot into the applicant’s lot, and I have made an order in that regard.

The respondents have made a counterclaim against the applicant that she has made their children fearful of her. The respondents have not provided any details to substantiate this allegation. The respondents also claim that they cannot afford to move, whereas they claim that there is nothing forcing the applicant to remain in her home, and she could afford to move, as she is a solicitor. This statement demonstrates the difficulty of resolving disputes such as the one that has arisen here. Why the respondents believe that any person should have to vacate their own home because of the behaviour of others is not entirely clear to me, and in my view is certainly not sustainable.

The by-laws for this scheme are those which were in force at the time that the Registrar of Titles recorded the standard community management statement for this scheme on 13 July 2000 (see section 339 of the Act). Those by-laws were previously recorded by the Registrar of Titles on 23 August 1994 and comprised of the 11 by-laws contained in Schedule 3 of the Building Units and Group Titles Act 1980 and 2 further by-laws approved by resolution without dissent on 22 August 1994 relating to the exclusive use courtyard areas allocated to lots 1, 4 and 5.

Community living requires all parties to consider those living around them It is for this reason that by-laws are enacted which regulate such mattes as noise, parking on common property, obstruction, and depositing of rubbish, to name but a few. In addition, section 167 of the Act provides as follows:

167 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.

I am satisfied that the respondents have breached the by-laws of this scheme, and I therefore propose to make orders that require them to abide by the by-laws. I am further satisfied that the respondents have breached the requirements of the Standard Module, and I have also made an order in that regard.