Camden [2005] QBCCMCmr 320 (10 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0746-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11034
Name of Scheme:	Camden
Address of Scheme:	108 Macquarie Street, ST LUCIA Q 4067

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Camden community titles scheme 11034

I hereby order that Lachlan Evans and the other occupiers of Lot 4 must immediately comply with section 167 of the Body Corporate and Community Management Act 1997 and with the following By-Laws for the Community Titles Scheme 11034: 1. By-Law 1 "Noise" and cease using Lot 4 or the common property in such a way likely to interfere with the peaceful enjoyment of an owner or occupier of another lot in the scheme or of any person lawfully using common property. 2. By-Law 6 "Behaviour of invitees" and take all reasonable steps to ensure that invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property. 3. By-Law 7 "Depositing rubbish etc. on common property" and cease depositing or throwing on the common property any rubbish or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property. I further order that in all other respects, the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0746-2004

"Camden" CTS 11034

APPLICATION

This application is by the body corporate (applicant) against Lachlan Evans and other unknown occupants of Lot 4 (respondents), and John and Alison Evans, the owners of Lot 4 (affected persons). The applicant is seeking an outcome that the occupiers of Lot 4 cease contravening body corporate by-laws and that the owners of Lot 4 be held accountable for not taking action towards evicting the occupiers of the Lot.

JURISDICTION

"Camden" Community Titles Scheme 11034 is a 15 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to Lachlan Evans on behalf of the respondents, to John and Alison Evans, and to the body corporate secretary for distribution to the owner of each lot (excluding the affected persons). A submission was received from Lachlan Evans on behalf of the respondents, and a number of lot owners.

DETERMINATION

The body corporate claims that the respondents have contravened by-laws relating to noise, damage to common property, behaviour of invitees, and depositing rubbish on the common property. The body corporate has stated that since late 2002 there have been a number of occasions where Lachlan Evans and the other occupiers of Lot 4 have contravened the by-laws relating to the above issues. The body corporate has provided examples of actual events on 31 August 2003, 9 March 2004, 14 August 2004, and 5 November 2004, and the minutes of a committee meeting dated 16 July 2003 note that the police were called on 2 occasions in June 2003 regarding incidents relating to the occupiers of Lot 4.

The application has been supported by 3 other lot owners or their representative.

Lachlan Evans made a submission on behalf of the respondents to the effect that:

• Much of the material included in the application is either untrue or due to an unreasonably low level of tolerance from other occupants.
• The occupants of Lot 4 have been incorrectly blamed for by-law breaches on one occasion which were from the occupants of Lot 3.
• The occupants have not created excessive noise and that if it were excessive, it has only been an issue on four or five occasions since December 2002.
• On rare occasions the common property has been damaged, and that where this damage has been brought to the attention of the occupants of Lot 4, it has been immediately paid for.
• Rubbish has been left on common property on rare occasions and has been substantially cleaned up.
• Issues with the behaviour of invitees have occurred infrequently.

"Camden" is a community titles complex and the legislation ensures that each occupier’s right to the peaceful enjoyment of their lot and the common property is protected.

Section 169 of the Act provides that the body corporate may make by-laws regulating the use and enjoyment of lots and the common property. The body corporate has maintained the "standard" by-laws provided in Schedule 3 of the Building Units and Group Titles Act 1980, and these by-laws have been notified to the respondents.

Section 167 of the Act provides the basic rule governing an occupier’s use of their lot and the common property and provides, quote:

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.

The applicant has provided a chronological history of the circumstances relating to this dispute. The by-law contraventions which are the subject of this dispute have occurred intermittently since December 2002, and it is not submitted that the occupants of Lot 4 have continually contravened the by-laws. However, it is clear that similar incidents on various occasions have led to a repeated contravention of provisions of the body corporate by-laws.

The test in the "Noise" By-Law is "noise likely to interfere with the peaceful enjoyment" and the nuisance provision of the Act is based on unreasonable interference. Mr Evans states that other occupiers have an unreasonably low level of tolerance, and that on one occasion the occupiers of Lot 4 have been incorrectly blamed for disturbing other occupiers. Given that the application has been supported by persons who occupy lots on the same level of the building as Lot 4, and lots on the level directly above Lot 4, I am prepared to accept that the claimed disturbances mostly relate to the occupiers of Lot 4 and not to the occupiers of another lot in the scheme. I do not agree with this statement about a low level of tolerance. The incidents which have been described in the application and the submissions would certainly contravene the terms of the By-Law and section 167 of the Act.

The body corporate also claims that the respondents have breached By-Law 5 relating to "Damage to common property". Mr Evans has stated that the damage caused to common property has been paid for. However, I do not consider that the claimed damage is subject to the provisions of the By-Law. Therefore, I will not make an order against the respondents in relation to this By-Law. However, the body corporate is entitled to take an action against a person who has for example, wilfully caused damage to the common property.

In relation to the By-Laws regarding "Behaviour of invitees" and "Depositing rubbish etc. on common property", I consider that the application and the submissions from or for other lot owners clearly demonstrate that these By-Laws have been contravened by the respondents. While the respondent has stated that any damage has been rectified and that the rubbish on common property is removed, the fact remains that these incidents should not have occurred, and the occupiers of other lots in the scheme should not be subjected to the behaviour associated with such incidents.

The by-laws to which the applicant has referred form part of the CMS for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. It is a function of a body corporate under section 94(1) of the Act to enforce the CMS, including any by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by-laws. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers. The body corporate is entitled under section 183 of the Act to seek enforcement of a by-law which is not being continually contravened, but which in the circumstances, the contravention is likely to be repeated. Section 183(5) provides that the maximum period that such a notice can apply is 3 months.

The body corporate has shown that it has given Lachlan Evans and the other occupiers of Lot 4 a "Notice Regarding Likely Future Contravention of a Body Corporate By-Law" dated 1 September 2004 concerning the events on 14 August 2004, and that the incidents stated to have occurred on 5 November 2004 demonstrate that the respondents did not comply with the notice. Therefore, the body corporate is entitled to seek enforcement of the by-laws through this dispute resolution process. The body corporate also had the option of starting proceedings in the Magistrates Court for failure to comply with the notice.

Given that the body corporate has demonstrated that similar incidents have occurred irregularly over a period of approximately 2 years, and that the incident before the application was made was not an isolated incident, I consider that it is reasonable for the body corporate to take this action under the dispute resolution provisions of the Act. The body corporate has notified the respondents of its concerns, yet similar circumstances arise which not only affect a persons lawful right to peaceful enjoyment, but which have damaged common property. In addition, there is no claim or evidence that the body corporate has unreasonably discriminated against the respondents.

In conclusion, in my view, the incidents detailed in the grounds of the application and the supporting submissions clearly demonstrate that the actions of the respondents have contravened provisions of the by-laws for the scheme, and that it is likely that the circumstances of the contravention will be repeated. In my opinion, the respondents have also breached the provisions of section 167 of the Act. Therefore, I have an order in the terms sought by the body corporate. The body corporate should not have to continually give section 183 notices to the respondents where the respondents contravene provisions of the by-laws on irregular occasions. If this order is contravened, the body corporate can choose to seek enforcement of the order under the enforcement provisions of the Act.

The applicant has named Lachlan Evans and other unknown occupiers of Lot 4 as the respondents. It is normal that the respondents be named to give them the opportunity to respond to the application. It is also normal practice that a long term occupier of a lot in a community titles scheme is known to the body corporate as the owner of a lot is required to notify the body corporate of the name and address of a lessee or sublessee where the term of the lease is for a term of six months or more (section 140, Standard Module). In this circumstance, it would seem that the occupiers of Lot 4 are not subject to a lease agreement with the owner of the lot. The applicant has referred to occupiers of Lot 4 and the submission from Mr Evans refers to occupiers of the Lot. Therefore, I consider that it is reasonable to include the other occupiers of the Lot as at the date of this order in the terms of the order.

The applicant has also sought an outcome that the owners of Lot 4 be held accountable for not taking action to evict the occupiers of Lot 4. The occupiers of the lot are bound by the by-laws and the body corporate has a right make an application under the dispute resolution provisions of the Act in relation to a claimed contravention of a by-law. However, the dispute resolution provisions do not provide for an action to be taken against the owner of the lot to be held responsible for the actions of the lot occupier. Therefore, this outcome is dismissed.