Sailfish Cove [2006] QBCCMCmr 364 (6 July 2006)

Number of Scheme:	20394
Name of Scheme:	Sailfish Cove
Address of Scheme:	215 Cottesloe Drive MERMAID WATERS QLD 4218

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

I hereby order that, for a period of one year, Stephen and Lydia Kypreos, occupiers of lot 209 of Sailfish Cove (respondents) must ensure that persons present on their lot do not create any amplified noise or general noise from gatherings of people such that the noise is clearly audible from inside another unit in the scheme between the hours of 11 pm and 7 am.

I further order that, for this period, the respondents must not engage in other 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 0292-2006

"Sailfish Cove" CTS 20394

Sailfish Cove Community Titles Scheme (Sailfish Cove) is a 225 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). This module is designed for schemes that are predominately accommodation lots, often designed for holiday letting.

This application is by the body corporate (applicant) seeking orders against Stephen and Lydia Kypreos, occupiers of lot 209 (respondents). Lydia Kypreos is the registered owner of the lot.

The body corporate has submitted that the respondents have a total disregard for others living in the scheme or the by-laws. It is submitted that the respondents create nuisances at the scheme that have required police intervention. The main complaints are of two types. Firstly, there are complaints of loud domestic arguments. Secondly, there are complaints of loud music and loud gatherings of people causing excess noise. It is alleged that requests by on-site security to reduce the levels of noise are regularly ignored.

By letter dated 23 May 2006, the respondents were given an opportunity to make written submissions in respect of the application. Their submissions were due by close of business on 13 June 2006. No submissions have been received at this time, despite this office confirming with the body corporate manager that the address for service on the body corporate roll is the address to which the letter inviting submissions was sent. The respondents should have had arrangements in place by which they could respond to a letter sent to their address within a reasonable time. It is therefore reasonable to infer that the respondents have notice of the application but have chosen not to make any submission.

An occupier of a lot must not use or permit the use of the lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of other lots or the common property (Act, 167).

Further, the functions of the body corporate include enforcing the by-laws for the scheme (Act, 94). The by-laws for Sailfish Cove include:

The body corporate has provided ample evidence to support claims that the respondents have interfered unreasonably with the enjoyment of occupiers of other lots.
Firstly, by loud domestic arguments. Secondly, by loud music and loud gatherings of people. This evidence includes copies of complaints from other owners and copies of diary entries of security personnel.

The respondents have not made any submissions. In the absence of any submission disputing the application I will accept the evidence provided by the body corporate. I therefore conclude that the respondents have contravened the Act and the by-laws by creating noise that interferes unreasonably with the use and enjoyment of other lots.

An adjudicator must make an order that is just and equitable in the circumstances to resolve a dispute (Act, 276). The evidence before me indicates that an order restraining the respondents from causing nuisance to any persons on the scheme is justified, at least for a relatively short period of time until the respondents have been able to demonstrate that they are able to meet the standards of behaviour expected by the legislation and the scheme by-laws.

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.

I therefore propose to grant an order that will put the respondents on notice that they 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 respondents behave in accordance with this order and the legislation then the order will have no further effect after that one year period. However, if the respondents subsequently engage in behaviour that is contrary to the legislation then, on a further application, they may be subject to an order that will operate for a longer period.

The by-laws of Sailfish Cove impose a specific requirement occupiers ensure any invitees leaving after 11 pm leave quietly. It seems reasonable to expect that noise created by occupiers or invitees will not be clearly audible from inside another unit between the hours of 11 pm and 7am. This order will therefore provide specifically that the respondents must ensure that persons present on their lot do not create any amplified noise or general noise from gatherings of people such that the noise is clearly audible from inside another unit in the scheme between the hours of 11 pm and 7 am. There are also complaints of more general nuisance including noise from domestic arguments. The order will also contain a general prohibition on creating a nuisance. However, it is important that the body corporate recognise that occasional arguments or shouting would not amount to a nuisance and action can only be taken when this behaviour extends outside the wide range of what may be considered to be normal.

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.

If noise is clearly audible from inside another unit then the body corporate can produce evidence of this and take appropriate action in the Magistrates Court. The body corporate would also have the option to bring an enforcement action in the Magistrates Court with evidence of more general nuisance. However, in some instances it would be more appropriate for the body corporate to simply report the behaviour to the police, particularly in the case of domestic arguments.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sailfish Cove [2006] QBCCMCmr 364 (6 July 2006)