Dorset Place [2006] QBCCMCmr 266 (26 May 2006)

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

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0036-2006

"Dorset Place" CTS 9928

Application

The Body Corporate of Dorset Place CTS 9928 (the applicant) requests as follows (quote):

"We seek an order from the Commissioner’s Office against Unit 2 to cease the continual harassment of all owners and tenants within the complex. With harassment including the verbal abuse to people leaving and entering the complex, persistent banging and the intentional slamming of balcony doors from within Unit 2 all hours of the night and early hours of the morning and all other actions performed with the intent of disrupting all other owner/occupiers within the complex from peaceful living".

Jurisdiction

Dorset Place is a 6 lot scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). It was created under a Building Unit Plan of subdivision.

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

(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 Body Corporate originally lodged an application against the owner of Lot 2, Isla Gray (the respondent) in August last year (0651-2005). This application was rejected on the basis that the Body Corporate had not issued the respondent with a Notice of Continuing Contravention of a Body Corporate By-Law. A formal contravention notice was issued on 23 November 2005.

The Body Corporate state they wish to submit "years of torment/trauma and loss of rents, decrease in property valuation, has taken a huge mental drain and anguish on owners who are resident in this strata title". A significant number of attachments are provided and are summarised as follows:

Item No	Date	Description
1.	13 March 2003	Letter from occupiers of Unit 5 (Smith) saying that in the 2 months they have lived there they have been abused and hear constant banging. She has poured a bucket of water over the balcony onto one of the residents as they moved from the garage to the balcony while carrying computer equipment. Their visitors are abused and even the plumber has been subject to abuse. They have started sleeping over at their parents’ home rather than stay in their unit;
2.	2 June 2003	Letter from previous tenant of Unit 5 (Smith) confirming he broke the lease 2 weeks ago due to respondent’s behaviour. His final decision was made when the respondent threw something at his car when he arrived home one day;
3.	5 July 2003	Resident of Unit 6 advising she is considering selling her unit to escape the respondent’s behaviour, saying that when she first moved in she was abused by the respondent for "normal living noise" e.g. driving a car out or walking up the stairwell. Also notes that she has seen the current and former residents of Unit 5 abused, including for going to the toilet. The police were called on 31 May 2003 as the respondent was playing music so loudly. After the police left she went about yelling that she would call the police next time someone else made a noise. She left notes around the premises regarding her perception of noise, but revs her own car for around 5 minutes between 6:00am and 6:20am each workday, runs up and down the stairwell, slams various doors a number of times each and leaves the car stereo on very loudly. She assembles rubbish in the stairwells;
4.	Undated	Letter from other occupiers of Unit 5 (Padova and Valenti), summarising a lot of the above behaviour and also noting that the respondent once jammed their door buzzer with a piece of wood until they came down to investigate and found an abusive note;
5.	11 July 2003	Letter from Real Estate Agent to respondent advising that as property managers for Unit 5 they are responsible for the reasonable peace and enjoyment of tenants. They advise there have been several written complaints and that they are incurring income losses due to tenants breaking leases. They advise they will go to the Magistrates Court for their losses if the behaviour continues;
6.	20 August 2003	Email from tenant of Unit 1 to Body Corporate Manager complaining of harassment from the respondent. She says she was abused for closing her car door and the respondent came by banging on her security screen on her bedroom and pressing the buzzer. She also advises she has seen the respondent retreating after throwing something heavy at her bedroom window at 6 am (13 August 2003);
7.	26 September 2003	Landlords of Unit 3 complaining about treatment of their past and present tenants by the respondent. Continual harassment and abuse is cited;
8.	26 September 2003	Former tenant of Unit 3 writes to say that in the first 3 years he was there, he received no complaint from the respondent about his shiftwork. He alleges that the respondent then had "problems of a personal nature, after a brief relationship. It was after this that she began making noise. When approaches as to why, she said she had to retaliate for the noise from Unit 5 above her. He alleges her door had to be replaced because it was wrecked from slamming. He alleges she asked him to sign a petition to have the occupier of Unit 5 removed. Once he started shiftwork again, the abuse and harassment turned against him;
9.	28 May 2005	Residents of Unit 5 (Feebery and Kershaw) report abuse for closing her door, retaliatory banging in the extreme when she did the washing up, banging and abuse when she dropped a glass and retaliation (yelling, banging, door slamming) for other small activities like flushing the toilet or having a shower. She alleges abuse while walking across the common property. She states she is becoming frightened and very unsettled and even at the point where she is scared to turn on her television;
10.	7 June 2005	First resolution to institute Dispute Resolution Application;
11.	27 July 2005	Warning letter to respondent from Body Corporate Manager advising her behaviour is a clear contravention of Body Corporate by-laws and therefore must "cease forthwith".
12.	1 August 2005	An unsigned note which appears to be a briefing note in relation to Unit 5’s complaints (similar content to letter of 28 May 2005);
13.	1 August 2005	Committee votes "to proceed immediately to receive, police reports, letters of complaint and arrange for a Dispute Resolution to be sent to the Department of Fair Trading and then to appropriate civil court preceding (sic) to have the Unit owner of Unit 2 restrained from abusing verbally and physically all other owners and tenants in her block of units and what is necessary to get a restraining order against Unit 2 owner".
14.	8 August 2005	Minutes of meeting distributed, along with letter from the chairman making the following comments: • Respondent’s behaviour is causing tenant turnover in Lots 1 & 5 • Owner of Lot 3 is suffering stress ill health and mental anguish and this is supported by the attendance of his two carers from Endeavour at the Committee meeting • Overall unhappiness, disharmony and anxiety in most residents • The most recent letter (28/5/2005) is accurate and reflects similar incidents in 2003 and 2004;
15.	23 November 2005	Notice of Continuing Contravention issued;
16.	16 January 2006	Dispute Resolution Application lodged.

An extensive submission was received from the respondent who engaged a solicitor in relation to the Body Corporate Manager’s letter of 25 July 2005. Many of the attachments seem to indicate that the respondent believes she is merely practising appropriate retaliation. For the purpose of assuring the respondent that her rationale is noted, I will go through the same process of summarising the attachments, as I did for the applicant:

Date	Description
18 May 2004	Letter from respondent to Unit 6, explaining that she does not understand why occupier of Unit 3 cleans the outside areas so often and leaves the debris against her garage. Also requests that while addressing this issue with Unit 5, that he be requested to sweep rather than use so much water;
3 November 2004	Letter from respondent to chairperson, noting that Unit 3 now sweeps rather than hoses, however again alleges that the debris is being left at her garage door. Also asks that he be asked to stop slamming the door;
19 November 2004	Letter from respondent to Body Corporate Manager complaining of garden debris and door slamming by Unit 3. Asks he be required to put debris in a certain place and have his door fixed so it doesn’t slam;
25 May 2005	Respondent complains about appearance of building to Body Corporate Manager and asking that a copy of the by-laws be distributed to all residents;
26 May 2005	Letter from respondent to occupiers of Unit 5 saying they are noisy and alleging that they deliberately provoke her with door slamming, scraping of metal, dropping things and loud thumping music. Points out it is an old building and that their floor is her ceiling. She states that she will be as courteous to them as they are to her;
25 July 2005	Letter from respondent to Body Corporate - little has happened in relation to the appearance of the building, alleges that Unit 5 laughed when they poured water over the respondent’s washing on her balcony and proceeded to send down 4 more lots of water, requests that garden be maintained, says balconies need repair and painting, says tiles are lifting, says security door to the premises is still damaged after 5 years of requests for repair and need a procedure regarding wheelie bins. She states it is no wonder she is having trouble selling her Unit;
29 July 2005	Respondent writes to Body Corporate Manager saying she would like clarification of the letter of 27 July 2005 (Item 11 above) as she does not know what she is to cease immediately;
30 August 2005	Letter from respondent’s solicitor in relation to Body Corporate letter of 27 July 2005 (Item 11 above) and minutes of Committee meeting of 1 August 2005 (Item 13 above). It described items 9, 12 and 14 above as defamatory. They say it is clear the Body Corporate does not know the preconditions of the Body Corporate and Community Management Act 1997. Their client disputes the material annexed to the minutes of that meeting as false, distorted and defamatory. Their client admits she has reacted badly at times but always in commensurate response to other residents. They say there is bias against her as they have never sought her feedback. They say that when she sought detail in relation to the letter of 25 July 2005, no-one responded. They say this means they intend to pursue the respondent no matter what she has to say. They say they are wasting the Body Corporate’s resources by pursuing this and not attending to other important maintenance matters;
31 August 2005	Letter from Body Corporate Manager to respondent’s lawyer, noting it will be "presented to the Dispute Resolution when the Commissioner for Body Corporate and Community Management ...... has decided what course of action they will be requiring";
2 September 2005	Letter from solicitor to Body Corporate Manager saying you are still not following the procedures required under the legislation and request a copy of the Committee’s authority;
18 November 2005	Letter from solicitor to Body Corporate Manager asking for a response to the above and another unrelated matter.

The above attachments were accompanied by a covering note that makes the following points in addition to that encapsulated above:

Response to Submissions

The Body Corporate advises that these concerns have been ongoing since 1999 and only vary according to the owner or tenant being affected. Of the 6 owners, 4 are in favour of the Application against the respondent, with only one owner abstaining. They state that this and the previous application are factual. They state this is the first time they have taken steps with the Commissioner to finally resolve the matter. They state that noise should be expected and tolerated to a reasonable extent in day to day living. They say residents of Lots 3, 5 and 6 are complaining about noise over and above that which would be considered reasonable.

To support the response to submissions, the applicant attaches a Body Corporate inspection report authored by Fay Jackson Legal Services dated 28 May 2002. Within that report under the heading "Disputes and Defects" two other episodes involving allegations against the respondent are noted. These involve similar issues as those above and are noted at the end of 1999 and the middle of 2000.

Determination

I note that the Notice of Continuing Contravention of By-Laws issued on 23 November 2005 relies on the following by-laws:

2. Noise

I am unable to locate confirmation that these are the by-laws applying to the scheme. It appears that the applicable by-laws may in fact be those contained in Schedule 3 of the Building Units and Group Titles Act 1980.

While the notice may not be technically correct, it can still be said that the respondent was put on notice that her involvement in the current dynamics of the complex is considered unacceptable by the Body Corporate. The Body Corporate has provided evidence of numerous complaints about the respondent’s behaviour over several years. The respondent admits that she has been known to retaliate by screaming and slamming doors, though she denies any sabotage or beating on ceilings or pipes.

The involvement of the respondent is a recurring theme throughout the complaints tendered in this matter. I do not accept the argument that there is a bias against her that exists independent of the current noise issue. By her letter of 3 November, she in fact provides evidence that the occupier of Lot 3 was approached about using a hose and garden debris (as a result of her letter of 18 May 2004), by noting that the hosing had stopped. That fact that the respondent says that garden debris is still appearing at her garage door may be that the Body Corporate has tried, but has not been effective in addressing that part of the complaint. A parallel may well apply here, in that there is evidence the respondent’s retaliatory behaviour continued, despite having been approached by the Body Corporate.

I accept that at times it is likely that the respondent has at times been the victim of noise beyond what might be considered reasonable and that at times she has been the victim of counter-attacks. However, from the evidence before me I have formed the view that the respondent’s retaliation has frequently been excessive and often likely to be an overreaction to the sounds of normal living within an aging building and the location of her unit at the front of the complex.

The value the respondent sees in this retaliatory action is also questionable, given that the respondent suggests that it has done nothing to stop others’ noise generation and she denies that her behaviour is causing a turnover in tenants. One therefore has to question why she returns to this strategy, particularly when her behaviour affects so many residents, rather than a discrete target. Further the Body Corporate and Community Management Act 1997 does not deem the "urge to retaliate" as an excuse.

Section 167 Body Corporate and Community Management Act 1997 provides

In my view, the respondent’s behaviour has in the past constituted a nuisance. Further, I find that her belief that she was provoked and that the behaviour was justified, indicates she is likely to adopt the same behaviour in the future despite indicating that she has restrained herself since July 2005. I will make orders requiring her restraint to continue.

Given that the respondent appears to be particularly susceptible to noise within the complex, it may be in her interests to investigate acoustic insulation options, particularly as she believes she already has a false ceiling. She may also like to put it to the Body Corporate that other owners may be interested in investigating the possibility of upgrading the acoustical standards within the building.

Number of Scheme:	9928
Name of Scheme:	Dorset Place
Address of Scheme:	31 Dorset Street Ashgrove QLD 4060

(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."

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Dorset Place [2006] QBCCMCmr 266 (26 May 2006)