Casa Del Sol [2004] QBCCMCmr 439 (14 September 2004)

Last Updated: 30 September 2005

REFERENCE: 0040-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11785
Name of Scheme:	Casa Del Sol
Address of Scheme:	35 - 37 Old Burleigh Road SURFERS PARADISE Q 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Andrew Cassimatis the owner of Lot 17

I hereby order that: 1. The body corporate shall take reasonable steps to ensure that the visitor’s car park is reserved for bona fide visitors to the scheme and to enforce the legislation and by-laws in relation to the use of the visitor’s car park. 2. Otherwise, the applicant’s application: "That ALL nuisances and obstructions committed deliberately or otherwise which destroy or impinge on my peaceful enjoyment cease immediately and permanently." is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0040-2004

"Casa Del Sol" CTS 11785

APPLICATION AND SUBMISSIONS

1. The applicant, Mr Cassimatis, is the owner of Lot 17 of the Casa Del Sol Community Titles scheme. By his application he seeks:

"That ALL nuisances and obstructions committed deliberately or otherwise which destroy or impinge on my peaceful enjoyment cease immediately and permanently."

2. In support of the outcome he seeks, the applicant has particularised the following matters which I take to be the "nuisances or obstructions" about which he seeks an order:-

(i)	Noise etc from nearby units;

(ii) Harassment from the caretaker;
(iii) Hunted from the recreation area;
(iv) Attempt to terrorise me;
(v) Solicitors letter;
(vi) Financial irregularities (also itemized under paragraph (xiv);
(vii) Uglification (sic) of the Western stairwell;
(viii) Other (destruction of plant on balcony (including trespass); disconnection of my TV antenna line (for 2 years));
(ix) Morale;
(x) Ducting system;
(xii) By-law violation Unit 16;
(xiii) Acquisition of Shower/Toilet room

3. Under section 243 of the Act, a copy of the application was provided to the respondent body corporate and to all owners, with an invitation to the committee and all owners to respond to the matters raised in the application. Written submissions were received from Mr and Mrs Roulston, Mr and Mrs Wooders, Dr Cox, Mrs Beachen (Chairperson body corporate), Ms Gilligan, Mr R Ayre and Ms Bee (Caretaker/managers), Mr Towner and Miss Kennedy, and Miss McGlynn. One late submission was accepted from Ms Gilligan, but a second of 26 August has not, as procedural fairness could not be afforded.

4. The submissions other than those from the owner of Lot 3 generally present views contrary to the position of the applicant. Many of these submissions are from absentee owners. The applicant submits, in essence, that because there is a reciprocal reliance between these owners and the caretaker/manager in respect of tenancy income, little weight ought to be given to their submissions.

5. The owner of Lot 3 has, in her submissions, made additional allegations directed towards and adverse to the caretaker/manager, but which are unrelated to the matters raised by the applicant and therefore cannot be considered in determining this application.

6. I intend only to refer to and rely on the material in the application and submissions relevant to a determination of the issues raised.

JURISDICTION

7. This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

8. 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.

9. 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)).

FACTS

10. Casa Del Sol is comprised of 18 lots, to which the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the accommodation module) applies.

11. The matters underlying the application are disparate, and some of the applicant’s complaints date back many years. They are directed variously towards tenants, past and present, and to the caretaker/manger.

12. The applicant has previously been advised by this office that the Commissioner’s powers are limited to those disputes and outcomes provided for under the Act. I have attempted to give some guidance in relation to matters for which there is a preliminary process under the Act prior to adjudication. However, for the reasons set out below I do not have jurisdiction in relation to many of the matters particularised by the applicant.

RELEVANT PROVISIONS

13. Because of the multiplicity of issues raised by the applicant, a number of provisions must be considered. The relevant provisions of the Act and by-laws are set out below for convenience.

14. Section 167 of the Act provides:

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.

15. Section 152 provides:

"The body corporate for a community titles scheme must –
(a) administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners, and
(b) comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme."

16. By-law 1 provides:

"The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property."

17. By law 2 provides:

2.1"The occupier of a lot must not, without the body corporate’s written approval-
(a) park a vehicle, or allow a vehicle to stand, on the common property; or
(b) permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property.
2.2 An approval under subsection (1) must state the period for which it is given.

18. By-law 3 provides:

"The occupier of a lot must not obstruct the lawful use of the common property by someone else."

19. By-law 6 provides:

"An occupier of a lot must take reasonable steps to ensure that the occupier’s invitees do not behave in a way likely to interfere with the peaceful enjoyment of another lot of the common property."

20. By law 8 provides:

"8.1 The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

8.2 the occupier of a lot must not, without the body corporate’s written approval –
(a) hang washing, bedding, or another cloth article if the article is visible from another lot or the common property, or from outside the scheme land; or
(b) display a sign, advertisement, placard, banner, pamphlet or similar article if the article is visible form lot or the common property, or from outside the scheme land."

21. By-law 14 provides relevantly:

"For as long as there is in existence a Caretaking agreement and/or a Letting Agreement pursuant to by-law 13 then -

(a)...

(b)...

(c) The Body Corporate will not itself, directly or indirectly, provide any of the services set out in the Agreement(s) provided that the Body Corporate may provided (sic) the services set out in the Agreement(s) if the Manager or party contracting with the Body Corporate to provide such services, fails or refuses to provide such services."

22. The applicant has complained about a sign/sandwich board which he says the caretaker has improperly allowed to remain on the common property. By-law 15 provides relevantly:

"For as long as there is in existence a Caretaking Agreement and/or a Letting Agreement pursuant to by-law 13 then –

(a)...

(b) The owner of Lot 7 and/or the party to the Agreements(s) will be entitled to erect or display signs or notices in or on the common property advertising any of the services it provides, provided that the owner must seek the consent of the Body Corporate for the erection of any such signs or notices which consent shall not be unreasonably withheld."

DETERMINATION

23. As a preliminary issue, the applicant makes this application as an owner against the body corporate. The order sought is expressed as relating to nuisance. However, in substance many of the particular instances relied upon as grounds for the order sought are:

(a)	a dispute between him and the owners of Lot 7 in those owners’ capacity as caretaker/managers; or

(b)	a complaint that particular owners or occupiers have been contravening the by-laws; or

(c)	matters which do not constitute grounds for a dispute under the Act.

24. While the caretaker/managers are also the owners of Lot 7, the application is directed to their performance in the role of service contractors. There is no jurisdiction for an adjudicator to deal with disputes between individual owners and caretakers/managers (service contractors) (see definition of "dispute" in s.182 Act).

25. It is the body corporate as a whole that engages a caretaker and for the body corporate as a whole to determine if it wants to bring an application against the caretaker in order to bring the dispute within the jurisdiction of this office.

26. Further, the applicant has not brought this application against any individual owner or occupier who he alleges to be contravening the Act or the by-laws. However, I find that in substance many of his complaints are against particular owners or residents.

27. An owner is only entitled to bring an application against another owner for contravention of the by-laws if he has first asked the body corporate to issue a contravention notice and the body corporate has not done so within 14 days (Act, 185). The statutory notice would be required for each owner alleged to be responsible for each contravention. This step is mandatory. The matters cannot be considered by an adjudicator until such time as this is complied with.

28. I find that a number of the matters on which the application is based are matters governed by the by-laws of the scheme to which s.185 applies. The applicant has not complied with s.185 by delivering notices of non-compliance in the approved form to the respective owners through the body corporate in respect of any of the relevant matters. Accordingly I have no power to deal with these matters, which I identify below.

Noise

29. The applicant states that "In Unit 16 whenever the Unit is let the noises usually continue throughout the night". He further states "The noise problems in Unit 16 date back to October 1999 when I first complained in writing to the Body Corporate." It is not apparent that this is a currently occurring or continuing problem.

30. I find that this is a matter which is governed by by-law 1. As the applicant has not complied with s.185, there is no jurisdiction to deal with disputes in relation to contravention of the by-laws by owners until the process provided for under s.185 of the Act has been satisfied.

31. However, to assist in the future resolution of like matters, I note that there is no substantive evidence that the noise levels exceed those expected in a community living situation or allowed by the relevant local authority, so as to interfere with peaceful enjoyment. While the applicant may subjectively find noise from the adjoining unit intrusive, especially as he leaves his door open, the onus is on him to demonstrate that, objectively, a reasonable person would find the noise was unreasonable. Photographs of stereo systems and of pillows blocking doors are of absolutely no evidentiary weight when considering issues of noise.

32. The applicant complains that there is noise "whenever the unit is let". However to substantiate his claim the applicant would need to demonstrate that subsequent tenants to a particular lot all engage in activities which cause an unreasonable level of noise.

33. Both section 167 of the Act (which prevents an occupier of a lot from using their lot in a way that causes a nuisance or interferes unreasonably with another’s use or enjoyment of their lot) and By-law 1, only operate to the extent of preventing "unreasonable" noise. Any by-law that purported to prevent owners/occupiers from engaging in normal everyday activities would be invalid.

34. The sound of holiday makers can be expected in a scheme to which accommodation module applies. For example, the sound of people diving in the pool, or children engaging in normal play can be fairly loud noises, but are part of normal activity and cannot be prohibited. The applicant appears to have had the misunderstanding that the Act and by-laws could operate to prevent any noise that he personally found annoying or objectionable. That is not the case as it would mean that an occupier with a neighbour with a low-threshold noise level would be able to successfully prevent the occupier from engaging in an activity that another neighbour, being one with a normal tolerance level to noise, would not object to. By-laws cannot operate in such a selective manner. The "reasonableness" test is one that is applied by the courts in many different situations, including defining acceptable noise levels in various situations.

35. Also in relation to noise, the applicant advises that:

"for about 3 years on and off, I had to put up with noises and disturbances from the Ducting (Exhaust) system, sometimes quite horrendous, on one occasion like an earth tremor. The motors are situated in the roof cavity above my bed and I have had to wear ear plugs... There appeared to be little attempt to fix the problem properly, and the system was frequently "down" for periods of up to 2 weeks which was illegal."

36. As evidence of this the applicant attached a letter of 10 August 1999. If this is in substance a noise complaint, the applicant has produced no substantive evidence that the noise level is excessive. His assertions are not supported by any of the other submissions.

37. Further, I am unable to assess on the material before me whether this is a continuing or resolved issue, as it does not appear that the system is currently "down". I am therefore unable to make any determination about this matter. I assume the ducting system is the responsibility of the body corporate rather than of any individual lot owner. If the issue is the body corporate’s failure to maintain the common property, the applicant should first raise the issue formally with the body corporate. The applicant is, of course, at liberty to inspect the records of the body corporate relating to maintenance of the system.

38. The applicant also complains under this heading of smoke and "drug polluted air" from an adjoining unit. He has supported this with photographs of butts in an ashtray, and what appears to be a hookah on the balcony below his. There is no evidence that this is a continuing problem, nor that it is a matter about which I have jurisdiction. I do not intend to consider it further.

39. The applicant also asserts that the visitor car space was used permanently for 8 months by tenants of one of the units. He states that the parking for periods of up to two weeks continues, obstructing the visitor park and depriving legitimate visitors of its use.

40. It appears from the submissions that the body corporate is aware of the issue and has failed to enforce the appropriate by-law. The body corporate has an obligation to ensure legitimate use of the visitor car park, and I find that and that it is a matter for which the body corporate has a general responsibility, rather than a dispute between individual owners. The body corporate has failed to its duty to enforce the by-laws in relation to the visitor car park and there is a likelihood that such breaches may continue. I therefore intend to order that the body corporate take reasonable steps to remedy the breaches, which should include monitoring of the use of the visitor car park, and issuing notices of non-compliance where appropriate.

Harassment from the caretaker

41. The applicant complains of actions allegedly by the caretaker which the applicant believes are directed against him personally. The only matter about which I can make a determination is the complaint of

"obstructing the common property shower cubicle and wash basin prior to illegally obtaining the room as their Linen Room. All owners still have to pay the Gold Coast City Council for their share of the pedestal which ‘no longer exists.’

I deal with this matter under a different heading (below) as the allegation is repeated.

42. Other matters about which the applicant complains under this heading are either not matters for this jurisdiction, or not matters about which there is any substantive evidence of a breach by a particular person or persons. If the applicant wishes to pursue these matters he should do so through the appropriate channels.

Hunted from the recreation area (decking near pool)

43. The applicant states that the caretaker has tried to discourage use of the pool area by not putting out chairs and umbrellas as required under the caretaking agreement.

44. This is a matter between an owner and caretaker and therefore there is no jurisdiction to adjudicate this issue. Adherence to and performance of service contracts is a matter for which the body corporate has responsibility, and any concerns of individual owners must be formally directed to the body corporate for consideration and any appropriate action.

45. If the body corporate fails to act or acts unreasonably, then the applicant can apply to this office. However until the body corporate has been given the opportunity to formally deal with the issue, no order can or ought be made.

46. The applicant states that "the caretaker has changed the fencing in such a way as to make the decking area virtually an extension of their courtyard, with a private barbecue and a light above permanently installed."

47. It appears from the submissions that the improvements to the common area were in part necessary to comply with local council by-laws. Were approved by the committee, and are available for the use of all owners and residents. The applicant may therefore avail himself of these amenities at any time. I find no substance for a complaint in this respect.

48. He further alleges that on two occasions when the applicant was using the area, the caretaker interfered with or allowed interference with the applicant’s quiet enjoyment of the common area.

49. In relation to any legitimate use by the applicant of the common property recreation area, by-law 3 is clear, and re-iterates the provisions of the Act. That is, the occupier of a lot must not obstruct the lawful use of the common property by someone else.

50. The only evidence of this relates to past occurrences, and there is no substantive evidence of the potential to recur. In the circumstances I am unable to make an order. However, if there is evidence that the applicant is currently or potentially obstructed in the use of the common property, the evidence should be referred in the appropriate way to the body corporate, which has an obligation to enforce the by-law.

Attempt to terrorise me

51. The matters of which the applicant complains under this heading are not matters for this jurisdiction and I do not intend to consider them further.

Solicitor’s letter

52. This is not a matter for this jurisdiction and I do not intend to consider it further.

Financial Irregularities.

53. The applicant advised that he had sought unsuccessfully to be able to audit the body corporate records. However, the only evidence of this is that he applied unsuccessfully to be appointed the part-time auditor.

54. The applicant has not specified the nature and extent of the irregularities, and has not produced evidence to support his contention in this respect.

55. The body corporate manager submits that the irregularities complained of by the applicant previously have been investigated by the body corporate and any past irregularities have been remedied or ratified.

56. No particulars of the financial irregularities are provided, and no evidence is provided for me to make a determination about this matter.

57. A previous application was brought by the applicant in respect of financial irregularities, and he has had the benefit of an order of the adjudicator in relation to ability to inspect the records of the body corporate. No doubt the body corporate is therefore all the more aware of its obligations for full disclosure. The applicant should avail himself of that entitlement prior to making an unsubstantiated and unparticularised application to this office.

Uglification of the western stairwell

58. It is difficult to determine exactly what it is that the applicant complains of. He has provided no specifics in his application or reply, but has supported this contention with photographs of pots, one containing a healthy palm and the other with no plant.

59. I understand, so far as it is possible on the evidence, that the applicant feels there is a discrepancy in amenity of the respective stairwells, one servicing his unit and the other servicing the caretakers. He cites personal animosity as the reason why this may occur.

60. I find that this is a dispute between the applicant owner and the caretaker and accordingly, there is no jurisdiction to make a determination. While it is for the body corporate to enforce performance of the service agreement, there is no evidence that the body corporate has failed in its obligations by not addressing this matter of its own initiative.

61. I note that this appears to be a somewhat trivial matter that might easily be resolved by communication and for which it is not appropriate to use the resources of this office.

By-law violation – Unit 16

62. The applicant complains of noise about which he was given advice from the body corporate manager. It is unclear whether this is still a continuing problem, or whether the noise complained of constitutes a by-law violation. To have his matter dealt with, the applicant must serve a notice of non-compliance on the owner through the body corporate in accordance with s.185. As this has not been done, there is no jurisdiction to consider this matter further.

Acquisition of Shower/toilet room

63. The applicant states that from mid-January 2000 the caretaker started blocking the entrance to the shower, toilet and washbasin facilities on the common property.

64. In November 2000 the following motion was passed by ordinary resolution:
"That the disused sauna and adjacent toilet which has a faulty pumping pit be kept locked and made available to the Building Manager for additional storage."

65. There is no evidence that this resolution was in any way irregular or unreasonable. Therefore, I find no basis for the complaint of the applicant.

66. However, the body corporate has a duty to ensure that all fees and charges levied are appropriately incurred. If there are any council charges that are no longer applicable, the body corporate should seek relief from payment and/or reimbursement.

67. The applicant further asserts that under the Building Code a toilet and washroom must be provide for tradesmen/workmen where there are more than 10 Units in the complex. There is no power for adjudicators to make determinations in relation to breaches of the Building Code, and if the applicant wishes to pursue this he should do so through the appropriate avenues.

Obligations of the body corporate

68. I have considered whether there is sufficient evidence to demonstrate that the body corporate has failed in its obligations under the Act or is failing to act reasonably in enforcing the by-laws and administering the common property for the benefit of owners unreasonably in any respect.

69. In particular, I have considered whether the body corporate has unreasonably refrained from issuing contravention notices and enforcing the by-laws. With the exception of the use of the visitor’s car park, the applicant has not provided sufficient evidence to satisfy me that particular owners or occupiers are continually contravening the by-laws to the extent that the body corporate is unreasonably failing to take action against those persons.

70. As stated above, if the applicant has evidence that a particular person is contravening the by-laws then the applicant should provide that evidence to the body corporate along with a notice of contravention of a by-law in the prescribed form (Act, 185).

71. In summary, apart from the visitor’s car park, there is no evidence, or insufficient evidence, of any irregularity; nor that the body corporate has failed to administer manage and control the common property reasonably for the benefit of the owners; nor that the body corporate has failed to address the concerns of the applicant and enforce the by-laws, as it appears the applicant has not formally put the majority of the issues of concern before the body corporate.

Summary

72. While I have dismissed much of the applicant’s application, it is apparent that there is a history of dealings between the applicant and other owners and residents, and matters probably incidental to living in a scheme catering for holiday makers, which give rise to what I believe to be a genuine sense of grievance in the applicant.

73. I note that the applicant, on the evidence in the submissions including in his own material, may himself have breached the by-laws or the Act when acting in response to the matters of which he complains. This is, of course, inappropriate.

74. I suggest that in future many of the matters of the type about which the applicant is concerned might be prevented or ameliorated by communication in the proper way, including in mediation. If the applicant has occasion to seek formal redress for breaches of the Act or by-laws, he should take the steps outlined by the legislation after considering carefully the nature, extent, and currency of the breach, the person responsible for the breach, and the evidence supporting his claims. It is also important to address matters of concern in a timely way.

75. All members of the body corporate are entitled to contribute to body corporate decisions and policies, but must participate in the prescribed processes if they wish to be effective and have their views considered.

76. However, it is incumbent upon the body corporate to ensure that by-laws are enforced, and service agreements are adhered to, that proper maintenance is carried out in respect of common property, and that it acts reasonably in performing its obligations for the benefit of all lots in the scheme.