Villa Estoril [2004] QBCCMCmr 342 (30 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0089-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16553
Name of Scheme:	Villa Estoril
Address of Scheme:	102 Indooroopilly Road TARINGA QLD 4068

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

I hereby order that, for the period of one year from the date of this order, Donald Richards and Bronwyn Richards, the owner/occupier of lot 4 (respondents) must strictly comply with by-law 3 of Villa Estoril, and ensure that their invitees also comply with this by-law.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0089-2004

"Villa Estoril" CTS 16553

Application

Villa Estoril Community Titles Scheme (Villa Estoril) is a 5 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by the body corporate for Villa Estoril (applicant) seeking orders against Donald Richards and Bronwyn Richards, the owner/occupier of lot 4 (respondents). The body corporate is seeking an order that the respondents be directed to cease parking any of their, or their invitees, vehicles on common property. The body corporate has also submitted that, on 12 January 2004, the respondents’ parking of vehicles on the common property obstructed a crane from attending the site to perform maintenance work. The body corporate seeks orders that the respondents be directed not to interfere with tradesmen lawfully engaged by the body corporate and reimburse the body corporate the amount of $638 wasted costs incurred by the body corporate as a result of the crane being unable to access the site.

Background

At the time this application was lodged, Villa Estoril was operating under a community management statement recorded on 23 January 2002 that adopted the standard by-laws in schedule 2 of the Act. These included a by-law to the effect that the occupier of a lot must not, without the body corporate’s written approval, park a vehicle on the common property or permit an invitee to do so.

On 28 April 2004, Villa Estoril adopted a new community management statement. By-law 3 of this community management statement provides:
3. VEHICLES
(a) Vehicles must not exceed 5klm per hour on the Common Property.

(b) The Occupier of a lot must not, without the Body Corporate’s written approval, which must state a time limit:

(i) Park a vehicle, or allow a vehicle to stand on the Common Property other than in the designated car wash bay for a maximum time of two hours for the purposes of cleaning the Occupier’s motor vehicle.
(ii) Permit an invitee to park a vehicle or allow a vehicle to stand on the Common Property except for the designated "visitor parking" which shall remain available at all times for the sole use of visitor’s vehicles.

(c) No commercial vehicle, truck or recreational vehicle, including, a boat or trailer (other than a four wheel drive) is allowed to be parked on the scheme land at any time.
(d) However, the Body Corporate may cancel the approval by giving 7 days written notice to the Occupier, with the exception of designated visitor parking.

Submissions

The body corporate’s main submissions were to the effect that:

• There are two short term visitor car parks on common property;
• The respondents have four vehicles and monopolise these two spaces; and
• The respondents have parked vehicles on the common property that have obstructed a builder from attending with a crane to repair the roof membrane. This has resulted in the costs of the builder attending with the crane being wasted ($638) and additional water damage to lot 3 from water ingress.

The respondents’ main submissions were to the effect that:

• Other owners have used the visitor car parks, not just the respondents;
• Other owners have sufficient parking for their needs and do not need to use the visitor car parks in the same way that the respondents do; and
• The respondents had advised owners that they were going to lodge an application to oppose the proposed building work. The respondents had also advised the builder that the matter was in dispute and that he should wait until it had been resolved before commencing work. The builder had ample time to cancel any plant ordered and the respondents should not be liable to the costs of that plant.

Submissions from other owners are to the effect that:

• One owner had previously used one of the car parks but the owner of that car has now found off site parking. That vehicle has not been parked at Villa Estoril since December 2003 except on two occasions for approximately fifteen minutes;
• Another owner has occasionally parked in the visitor car park but only for a few hours on rare occasions;
• The respondents now regularly monopolise the visitor parking by parking two vehicles in one visitor parking space and a third vehicle in the other visitor parking space; and
• On 12 January 2004, Mr Richards used a vehicle to block the driveway in order to obstruct the builder from performing his duties.

Decision

Applicable law

The Act establishes rights and imposes obligations on participants in community titles schemes in order to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law.

The body corporate has a duty to enforce the by-laws (Act, 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act, 94(2)).

Contravention of by-laws

The submissions of owners make it clear that the respondents have contravened the by-laws of the scheme regarding car parking. Further, photographs provided in one of the submissions show that three cars claimed to be under the control of the applicants were parked in two spaces on the common property on a number of different occasions.

I therefore accept that the respondents are parking on common property in contravention of the by-laws for Villa Estoril. Further, I accept the submissions of other owners that these car parks are being monopolised by the respondents and no other owner is regularly parking in these car spaces.

The body corporate has a duty to enforce the by-laws (Act, 94(1)). There is no evidence that other owners are regularly using the car spaces in question so as to justify a claim that the body corporate is unreasonably discriminating against the respondents by taking action against them rather than other owners. Further, it is not unreasonable for the body corporate to take action to enforce the by-law even if other owners do not need to use these spaces. If the car spaces are designated by the body corporate as visitor car spaces then the by-law requires that none of the owners should be using those spaces and they should be kept free for visitors. Further, the body corporate has submitted that the car spaces are designated by the local council as visitor car spaces and that long term parking of vehicles in these spaces by residents exposes the body corporate to prosecution for contravention of its town planning approval. Obviously, the respondents’ visitors will be entitled to use these car parks as visitor parking. However, the respondents are also under an obligation to ensure that their invitees abide by the by-laws (by-law 10) and the respondents must therefore take reasonable steps to prevent any invitees from contravening the by-laws by parking in these spaces on a long term basis or for purposes other than visiting the respondents.

Given the respondents have regularly contravened the parking by-laws in the past, I consider it appropriate to grant an order prohibiting the respondents from again contravening the by-laws regarding parking. I consider it just and equitable that this prohibition remains in effect for a period of one year. If the respondents fail to comply with this order then the body corporate is entitled to take action in the Magistrates’ Court seeking the imposition of a penalty of up to $30,000 and the recovery of costs (Act, 288).

Interference with maintenance works

The body corporate claims that, as well as contravening the parking by-laws, the respondents parked on the common property in such a way so as to interfere with proposed building work.

The respondents claim that the body corporate was aware that the building work was in dispute and should be liable for its own costs of attempting to commence the disputed work. The respondents say that they had previously told other owners that they would lodge an application to stop the disputed work if necessary. Further, on 9 January 2004, they told the builder that the work was in dispute and that he should wait until it was resolved before commencing work. On 12 January 2004 the respondents lodged the application with this office seeking to prevent the commencement of this disputed work.^[1] The body corporate claims that, on that day, the respondents parked vehicles to prevent the builder gaining access to the site to perform the disputed work.

It is concerning if the respondents have deliberately obstructed a builder in lawfully performing work for the body corporate. If the respondents wished to prevent the work from commencing then it was their responsibility to lodge an application in sufficient time to stop the work. In this instance, the respondents did gain the benefit of an interim order to put the disputed work on hold but that order was not granted until some time later. On the other hand, it is surprising that the body corporate did not request that this application regarding alleged obstruction of work be determined in conjunction with the above application by the respondents seeking an order that the work be put on hold. A determination on whether or not the work was lawful would be relevant in determining whether it is just and equitable to require the respondents to provide compensation to the body corporate.

In any event, even if the builder was lawfully engaged, the respondents’ submissions suggest that it would not be just and equitable to require the respondents to pay for the crane cancellation and other costs that were wasted. Firstly, the respondents state that they would have no desire to interfere with any tradespeople lawfully engaged by the body corporate and I accept that there was a genuine dispute regarding the lawfulness of the engagement. Secondly, the respondents make submissions to the effect that they were only told on 9 January 2004 that the work would be commencing on 12 January 2004, that they had previously told other owners that they would lodge an application objecting to the engagement of this builder if necessary, and that they told the builder himself on 9 January 2004 that the matter was in dispute and he should wait until it was resolved before commencing work. This therefore raises questions about the reasonableness of the actions of the body corporate in seeking to commence disputed work on short notice and in not being willing to put this work on hold pending resolution of the dispute. In fact, the body corporate was taking a risk that the disputed work may ultimately found to be unlawful. The body corporate could be subjected to very significant costs if the work have been commenced but it was subsequently found that the work was improper or unlawful and required reversing or rectification.

Therefore, even if the disputed work is ultimately found to be lawful, I do not consider it just and equitable to grant an order requiring the respondents to compensate the body corporate for the $638 expended when the builder was unable to commence the disputed work. Further, I do not consider it appropriate to grant a general order directing the respondents not to interfere with tradespersons lawfully engaged by the body corporate in the absence of evidence of any other occasion when the respondents have been alleged to have interfered with lawfully engaged tradespersons. Having said that, any owner who interferes with tradespersons engaged by a body corporate takes a risk that they will be held liable for any associated costs, including any damage resulting from the non-performance of maintenance work. If an owner disputes the performance of work then it would be prudent for them to, as a matter of urgency, seek an interim order to prevent the work from proceeding pending a final determination of whether the work is lawful.

Order

For these reasons, I make the order above.

^[1] Application 18-2004.