Campbell Marque [2004] QBCCMCmr 36 (20 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0465-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24172
Name of Scheme:	Campbell Marque
Address of Scheme:	21 Campbell Street TOOWONG QLD 4066

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Kenneth Alan Mayes & Carol Susan Mayes, the owners of lots 1 and 20

I hereby order that the application by Kenneth Alan Mayes & Carol Susan Mayes, the owners of lots 1 and 20 for several orders regarding alleged multiple breaches of by-laws and other contraventions of the Act by • Theen-Chin & Khim-Kin Woon Choong & T & KW Choong (and Khai-Wei Choong) of unit 13; • Graham Bridge of 20 Hermitage Place, Morayfield, QLD; and • Asoka and Hilary Seneviratne of 25 Barleycorn Avenue, Buderim QLD, that the application is dismissed under section 270(1)(c) of the Act on the basis that the application is vexatious and without substance.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0465-2003

"Campbell Marque" CTS 24172

The applicants, Kenneth Alan Mayes & Carol Susan Mayes, the owners of lots 1 and 20, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

Enforce the Body Corporate Act by-laws. Act 167 Nuisances, Act 182 continuing contravention notice, Act 183 future contravention notice Act 168 Schedule 4 By-laws 1. Noise 2. Vehicles 3 Obstruction 4 Damage to lawns etc 5 Damage to common property 6 Behaviour of invitees 7 Leaving of rubbish etc on common property 8 Appearance of the lot included CMS/CTS 24172 – diminish public liability risk.

In addition to the above orders, in a further statement provided by the applicants pursuant to a request for further information in support of the outcomes sought in the application, the applicants have requested several further specific orders. These appear to be directed specifically towards the first respondents listed below.

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)).

The persons (the respondents) against whom the orders are sought are :-

• Theen-Chin & Khim-Kin Woon Choong & T & KW Choong (and Khai-Wei Choong) of unit 13;
• Graham Bridge of 20 Hermitage Place, Morayfield, QLD; and
• Asoka and Hilary Seneviratne of 25 Barleycorn Avenue, Buderim QLD.

The respondents are the owners of lots 13, 11 and 25 respectively. They are also current body corporate committee members. The three respondents have made submissions regarding the application, and the applicants have replied to those submissions.

Determination

I intend to dismiss this application. Section 270 of the Act provides -

270 Dismissal of applications
(1) The adjudicator may make an order dismissing the application if--
(a) it appears to the adjudicator that the adjudicator does not have jurisdiction to deal with the application; or
(b) the adjudicator is satisfied the dispute should be dealt with in a court or tribunal of competent jurisdiction; or
(c) it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance; or
(d) the applicant fails, without reasonable excuse, to comply with a requirement of the adjudicator under section 271(1).
(2) The adjudicator’s power to make an order under this section may be exercised--
(a) without investigating the detail of the application; or
(b) before an investigation has ended.
(3) If the adjudicator makes an order under subsection (1)(c), the adjudicator--
(a) may order costs against the applicant to compensate the person against whom the application was made for loss resulting from the application; and
Example of loss for paragraph (a)--
Legal expenses reasonably incurred by the person in relation to the application.
(b) in ordering the costs, may have regard to previous applications made by the applicant.
(4) The amount of costs ordered under subsection (3) must not be more than $2 000.

Having read all the material relating to this application, in particular, the substantial submission made on behalf of the Choong’s (the first respondents), and from dealing with a previous application, being aware of certain aspects of an ongoing dispute between the applicants and the body corporate generally regarding the management rights, I can come to no other conclusion than that the intention of this application is to continue a course of harassment of the respondents. I conclude that the application is vexatious and without substance. There is no possible way that the applicants could argue that their application is objectively based, and genuinely reflects real concerns. Rather, it appears to be part of an ongoing campaign which the applicants are waging specifically against the respondents. Perhaps even, the motive for the application might be to obtain some strategic advantage against the respondents given that at the time of making the application, the male applicant had been charged with and was awaiting trial in the District Court for alleged offences against one of the named respondents.

Whatever the motive, in my view the application does not reflect a genuine concern for the enforcement of by-laws. Rather it seems intended to harass the named respondents, which harassment appears to have been ongoing for some considerable period of time. The applicants have singled out these three owners for alleged contraventions of the by-laws when it is observable from the information provided, and which I am prepared to accept, that in respect of the alleged allegations, the body corporate have previously given permission or consent regarding certain of the alleged conduct (eg. visitor parking, gardening etc) or where it is generally accepted by most members of the body corporate that body corporate by-laws will not be enforced strictly in respect of conduct which might otherwise be considered to contravene a by-law (eg. items being kept on balconies). In these circumstances, I conclude the applicants motives in bringing this application are not proper.

The application is such that I have even considered the imposition of a costs order against the applicants. However I have determined not to make such an order under section 270(4) of the Act for two reasons –

1. This section was incorporated into the Act after the application was made; and
2. Whilst the submission of the Choong’s is both detailed and of considerable length, there is no evidence that this respondent incurred actual costs in the preparation of that submission, excepting the personal cost of considerable time expended in so doing.

This is the second occasion to my knowledge that the male applicant has had a finding of harassment made against him. In application no. 0675 of 2001, the adjudicator there ordered in part that –

...
The respondent resident unit manager, Kenneth Alan Mayes, and any person employed by him, or acting on his behalf, is restrained from harassing or otherwise discriminating against, the owners or tenants of lots for which the resident unit manager has not acted and does not act as the letting agent.

The finding of harassment in this current application is much more specific; it is a finding of harassment of three particular owners. Whilst no cost order will be made as part of this application, this second more specific finding of harassment might be relevant to a consideration of any future application under which the provisions of section 270 might again be a consideration. The applicants should note the provisions of section 270(3)(b); in ordering the costs, (the adjudicator) may have regard to previous applications made by the applicant.