Sovereign Garden Villas South [2005] QBCCMCmr 32 (20 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0510-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16433
Name of Scheme:	Sovereign Garden Villas South
Address of Scheme:	53 Old Coach Road MUDGEERABA QLD 4213

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

Noel & Patricia White, the Owner(s) of lot 43

I hereby order that, for a period of one year from the date of this order, Ivor Gallagher, an owner of lot 33 (respondent) must not make comments on scheme land or engage in activities on scheme land that could reasonably be construed as causing a nuisance or being likely to interfere unreasonably with the use or enjoyment of a lot or common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0510-2004

"Sovereign Garden Villas South" CTS 16433

Application

Sovereign Garden Villas South Community Titles Scheme (Sovereign) is a 47 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application for interim orders. It arises out of an application by Noel and Patricia White, owners of lot 43 (applicants) seeking orders against Ivor Gallagher, an owner of lot 33 (respondent).

Background

The applicants alleged that the respondent had been making comments to, or about, them virtually every morning for the three months prior to them lodging the application.

The respondent admitted that he had been making comments to the applicants but says this was in retaliation for a comment made to him by one of the applicants. He also alleges that the applicants had deliberately banged crockery and cutlery together to annoy him.

On 31 August 2004 I made an interim order that, pending a final determination, restrained both the applicants and the respondent from engaging in activities likely to interfere with the other party’s enjoyment of their lots. I also commented that the most appropriate manner for resolving a dispute of this nature appeared to be some form of discussion or mediation between the parties and I recommended that the parties make a genuine effort to resolve their differences in mediation.

This matter has not been resolved by mediation and it is therefore necessary for me to make a final determination after giving all owners in the scheme an opportunity to make submissions in respect of the dispute.

Decision

Nuisance

The Act provides that the occupier of a lot in a community titles scheme must not use the lot or the common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot included in the scheme (Act, 167). In this instance the respondent has admitted to repeatedly making comments that appear designed to annoy another occupant within the scheme. The respondent has denied causing nuisance to other residents and says that he has hardly spoken to other residents with the exception of one person who he describes as "The Water Waster". However, this office gave all owners an opportunity to make submissions in respect of this application and has received sixteen responses. All of these sixteen submissions support a conclusion that the respondent has been causing a nuisance within the scheme by engaging in activities that could be described as stalking, spying, and making repetitive or abusive comments. There are also allegations that the respondent has pushed another resident who was standing in front of the respondent’s letterbox.

People who live in close proximity to each other need to be tolerant of their neighbours. In particular, by acting towards each other in a tolerant way on a day to day basis and in respect of minor conflict, neighbours can build a relationship that will assist them to resolve more serious disputes themselves. However, there will be circumstances where an individual’s behaviour is outside the range of what should be tolerated. If so, outside intervention may be required to stop that behaviour.

For example, the conduct of the respondent in following a person around on common property and making notes about that person has caused occupants to become angry and upset, is an intrusion on their privacy, and is contrary to the Act as it interferes unreasonably with the use and enjoyment of the common property by those persons (Act, 167). This has upset other residents to the degree that it seems to be difficult for residents to even carry on a brief conversation with the respondent without fear that the respondent will harass or threaten them. Actions of the respondent in continuing to make comments or continuing to take photographs of a resident after the resident has asked him to stop are clearly not only upsetting but, in the circumstances, would also amount to unreasonable interference with other residents.

The submissions convince me that the respondent has contravened the Act and interfered unreasonably with other persons’ enjoyment of scheme property. Some submissions indicate that the respondent has substantially complied with the interim order and is no longer causing nuisance to the applicants. However, the evidence before me indicates that an order restraining the respondent from causing nuisance to any persons on the scheme is justified, at least for a relatively short period of time until the respondent has been able to demonstrate that he is able to refrain from causing nuisance to any of the residents.

I therefore propose to grant an order that will put the respondent on notice that he cannot continue to engage in this behaviour that is causing a nuisance and interfering unreasonably with other residents. I consider it just and equitable that this order operates for a period of one year at this stage. If the respondent behaves in accordance with this order and the legislation then the order will have no further effect after that one year period. However, if the respondent subsequently engages in behaviour that is contrary to the legislation then, on a further application, he may be subject to an order that will operate for a longer period.

Enforcement

If the respondent contravenes this order then the other party, or the body corporate, may take action to enforce the order in the Magistrates Court (Act, 288). The penalties for non-compliance with an order are severe, comprising a maximum penalty of $30,000 in addition to any order for payment of the other party’s legal costs.

Order

For these reasons, I make the order above.