Lyndon Lodge Bilinga [2004] QBCCMCmr 489 (18 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0238-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28834
Name of Scheme:	Lyndon Lodge Bilinga
Address of Scheme:	72 Pacific Parade BILINGA QLD 4225

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

Martin Crowe, the Occupier of lot 3

I hereby order that the application by Martin Crowe, the occupier of lot 3 for an order - that the respondent comply with the by-laws that I have marked-up viz: Noise and nuisance: paras (1) and (2); Vehicles: para (2)(b); Obstruction; Behaviour of invitees: paras (1), (2) and (3); Leaving of rubbish on the common property: para (1); and Maintenance: para (8). is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0238-2004

"Lyndon Lodge Bilinga" CTS 28834

The applicant, Martin Crowe, the occupier of lot 3 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

... that the respondent comply with the by-laws that I have marked-up viz:
Noise and nuisance: paras (1) and (2);
Vehicles: para (2)(b);
Obstruction;
Behaviour of invitees: paras (1), (2) and (3);
Leaving of rubbish on the common property: para (1); and
Maintenance: para (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.

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)).

I have considered the material including the application, submissions from 3 of the 5 owners and the substantial (14 typed pages) reply of the applicant. I conclude that, on the basis of the information put before me by all parties, that this is not a dispute which can or should be adjudicated. I consider that this is a dispute which should have been mediated, and which should not have proceeded to adjudication. Mediation was recommended by this office, but the Dispute Resolution Centre has advised that it was not possible to arrange a mediation session and that consequently, no mediation was conducted.

Whilst either or both of the parties might have preferred this dispute to be adjudicated rather than mediated, I do not consider that this was possible or desirable for several reasons –

1. It seems to me that this is largely a personality driven dispute; the personal style and approach of the two parties appears, from the correspondence, very different, and this is in my view, in large part the cause of the dispute. I suggest that both parties should review their conduct and other actions regarding the other in order to reduce the level of disputation existing between them.
2. The by-law contravention procedures set out in Division 4 of the Act, have not, or not properly, been followed. Whilst there is evidence a notice was given by the applicant to the body corporate, there is no evidence or information that the body corporate acted upon or investigated these matters, with the view to issuing a contravention notice. To some extent it appears that the body corporate was not properly functioning at this time, and the authority to issue any contravention notice was a disputed matter. Such a notice appears as part of the application, the signatory of the body corporate being the applicant. However, the signature and all associated details are crossed out. The material evidences that the authority of the applicant to issue such contravention notice was disputed.

3. Section 94(1) of the Act provides that it is the role of the body corporate to enforce the community management statement (including any by-laws for the scheme). Given this requirement, endeavours by individual owners to enforce the by-laws should not be encouraged. Rather, the body corporate must undertake the role of by-law enforcement, acting on notices provided by owners. Consequently, I consider it the obligation of the body corporate, via its committee, to investigate the applicant’s allegations at first instance, and to determine whether or not to issue a contravention notice in respect of the alleged conduct. It is these actions which might by reviewed by this office, rather than allegations of alleged breaches of by-laws per se.
4. There are numerous allegation in the material on which it would be impossible for an adjudicator to reach any objective conclusion or determination. Much would depend simply on the credibility of the parties and who was more "believable". Given that adjudication undertaken by this office is essentially a paper based dispute resolution process, the ability to determine issues of credit is very restricted. Even if the parties were to be interviewed, there is no ability for the adjudicator to take evidence on oath. Moreover, there is information to suggest that many of the allegations cannot be checked or verified. For example, allegations of furniture being left on the common property where information provided states that the furniture has since been removed, or at least moved. Moreover, allegations regarding the conduct of the respondent which it is simply not possible to observe or to otherwise verify the accuracy of.
5. There are a huge number of allegations and counter allegations made. Many of these allegations are, in my view, somewhat frivolous in nature (many suggest sniping by one party of the other) or are otherwise minor. As well there is third party evidence suggesting that on many if not most of the issues, there are competing factors ie. that there may be some accurate points made by both parties.
6. Certain of the allegations relate to matters outside the jurisdiction of an adjudicator. For example, the allegations regarding the conduct of the respondent so far as it relates to the "adjacent private right of way". This allegation in particular is a matter for the local authority, or other entity in whom jurisdiction for the right of way is vested.
7. The resources of this office are not currently sufficient to undertake the level of investigation required in order to make any meaningful, albeit limited, determination and in my view, the magnitude or overall seriousness of the issues raised do not warrant such investigation being undertaken.

In the circumstances, I recommend to the parties that they re-consider their actions, and that if further disputes arise, that they seek to mediate those disputes. In the interim, I remind all owners of the obligation to observe the by-laws, and the provisions of the Act relating to Nuisances, whereby an occupier must not use or permit the use of a lot in such a way that it interferes unreasonably with the use and enjoyment of another lot, or of the common property by a person who is lawfully on the common property.