Pacific Keys East 1-10 [2006] QBCCMCmr 421 (2 August 2006)

Number of Scheme:	10229
Name of Scheme:	Pacific Keys East 1-10
Address of Scheme:	52 Hooker Boulevard BROADBEACH QLD 4218

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

I hereby order that the application for an order
" would like Diane Board not to harass myself and my son Wayne over trivial matters; and if she needs to ask or see me to put everything in writing, regarding body corp matters; if she has any personal matter relating to my son Wayne MacLeod she should direct these to myself as he is under medical care."
is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0239-2006

"Pacific Keys East 1-10" CTS 10229

APPLICATION
This is an application dated 3^rd April 2006 by Patricia Macleod (the Applicant) owner of Lot 2 in the scheme, against Diana Board (the Respondent) co-owner of Lot 5 in the scheme, for an order that the Respondent does not harass the Applicant or her son Wayne; that the Respondent addresses the Applicant concerning body corporate matters only in writing; and that any matter concerning the Applicant’s son Wayne, should be addressed to the applicant, since Wayne is under medical care.

JURISDICTION
"Pacific Keys East 1 – 10" CTS 10229 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 10 lots in the scheme 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)).

SUBMISSIONS
The Applicant’s case is that the Respondent has consistently harassed her and her son for 18 months since they moved into the scheme. The Applicant’s son is unwell and "under medical care." The Respondent has complained about "many things" being as follows –

There is no evidence or detail given in the application about these allegations, eg. no dates on which these complaints were made, and no circumstances given about the complaints; or whether they were justified in respect eg. of the parking of vehicles.

From the grounds set out, I understand that the Applicant did ask the gardener to do "a 2 minute small job" for her on his coffee break; and that the Applicant and her neighbour are happy with the position or condition of the fence between them. She says that Wayne has not committed any offence.

Only the Respondent of all the lot owners in the scheme was asked to make a submission in respect of these allegations. The Respondent explains that the scheme is in a complex consisting not only of the 10 townhouses, but also two high-rise buildings, and another set of ten townhouses (11 – 20 Pacific Keys) so that there are four bodies corporate. The land on which the four residences are situated belongs to Pacific Keys Services Limited, a Queensland registered company.

The company is responsible for the maintenance of the common property which includes substantial grounds.

The Respondent used to be the chairperson of the company, but resigned in April 2006, though she remains the scheme representative on the board of directors. She is also the chairperson of the scheme.

The Respondent denies speaking to the Applicant more than "four or five times." These times involved queries of a routine nature concerning eg. advising the Applicant to call a plumber; conversation with the Applicant when she asked for a copy of the building insurance at a general meeting. She denies any harassment. On one occasion she has asked Wayne to park his vehicle in a "close by area" instead of the visitors’ area, which he did with no dispute. She says that she is aware that the manager has asked Wayne to turn down music after complaints received from another townhouse, but that this was not at her instigation. She knows nothing about a garage door, pot plants or smoking. She was present when the Applicant asked two of the scheme contractors to follow her and occupied them for 25 minutes, after which time she and a Mrs Paice, went to get them. The men were not on coffee break, and residents are not permitted to interfere with employees and contractors unless they make arrangements for them to do work outside their usual working hours. She denies that she has any right to prevent any family member living in the scheme, and has made no statement about Wayne not living at home.

She has however said to the Applicant that Wayne needs care and supervision. The Respondent details an incident on 16^th March 2006 when Wayne tried to force his way into Respondent’s home and was persuaded by Mr Greg Board, the Respondent’s husband, to withdraw. The Respondent and the chairperson of townhouses 11- 20, Kelly Duncan, then called the police who took Wayne away, in the Applicant’s absence. The Applicant then returned home with Wayne, and the following morning, the police took Wayne away a second time and the Respondent has not seen him since. The Respondent says that Wayne has told her that he is schizophrenic "and has to take pills to control it."

The Respondent would comply with the order sought, since harassment is anyway denied, but would want consideration from the Applicant that she no longer supplies Wayne with alcohol; that Wayne is supervised when the Applicant is away; that Wayne’s medication is supervised; and that Wayne sits and drinks and smokes in a place away from the entrance drive. She advises that the Applicant is a member of the body corporate committee which would make only written communication very difficult, eg at committee meetings.

Kelly Duncan of Townhouse 18, which is not in the scheme, says that on 16^th March 2006, she saw Wayne urinating on a garden wall with a can of beer in his hand. Because of this, and a complaint made to her by the gardener Paul Sawyer, that he had just been threatened by Wayne, she and the Respondent left a message on the Applicant’s answering machine saying it was their belief that Wayne needed care. Shortly after this, in her presence, Wayne rang the Respondent’s doorbell "about 10 times" and when the Respondent opened the door, put his foot in it, and tried to push past her. They then called the police and Wayne was taken away, "to hospital."

The Applicant did not exercise her right of reply.

DETERMINATION
Section 167 of the Act provides

It is only under this section that the dispute as outlined by the Applicant has any bearing on this jurisdiction at all. The Act is not concerned with the general social behaviour of neighbours, nor is this Office the correct forum for a dispute about "harassment", however that term may be legally defined, or whatever standard is required to prove it.

Two of the outcomes sought concern Wayne, the Applicant’s son.

The Applicant seeks that the Respondent does not harass her or Wayne. She has provided no evidence whatsoever of harassment. She has not demonstrated in accordance with section 167 above that the Respondent has interfered unreasonably with her (or Wayne’s) use and enjoyment of her lot, or her use ( or Wayne’s use) of common property. The Applicant says that the Respondent has "made complaints" but does not say to whom the Respondent has complained, or what has been the result of the complaints, or when or how they were made.

It seems clear that the Applicant is concerned to protect her son Wayne, who suffers from some condition that requires medication, so that the Applicant, his mother, now requests the Respondent to address her directly if there is "any personal matter relating" to Wayne.

The Respondent says that she would be willing to abide by such an order, but it is not an order which I have jurisdiction to make. I must leave that to the discretion of the parties.

The third outcome sought is that the Respondent address the Applicant in future only in writing. Since the Respondent is chairperson of the scheme, the Respondent will no doubt have to communicate or correspond with the Applicant on occasion as part of her role. There is certainly no duty on a chairperson to speak to lot owners at all. The Respondent advises that the Applicant is also on the committee. I consider it would severely hamper the work of the committee if the chairperson could not discuss freely with committee members any subject concerning body corporate business, inside or outside committee meetings. Again, it is most doubtful that I have any jurisdiction to order that persons do not speak to each other, even if such order could be enforced. In short, what the Applicant requests is misconceived and futile.

I dismiss all three parts of this application.

Where an adjudicator dismisses an application, if it appears to an adjudicator that the application is frivolous, misconceived, vexatious or without substance, the adjudicator has power to make an order that the Applicant pay costs up to $2,000 to compensate the person against whom the application was made for loss resulting from the application. (Section 270(1)(c) and 270(4) Act).

This application has no substance, and has clearly caused upset and wasted a considerable amount of time of the Respondent who is caring for a sick husband. In addition, the Applicant informed a member of the administrative staff of this Office on 5^th May 2006 that she had only made the application to "give a fright" to the Respondent and " let her know that (the Applicant) was serious."

I have considered making an order for costs against the Applicant in these circumstances, which amount almost to an abuse of the dispute service offered by this Office. However, I consider that this Application was made less than a month after the incident when Wayne was taken away by the police, which must have been very distressing for both the Applicant and the Respondent.

It is understandable that the role of the Respondent requires her to investigate complaints, and that she is vulnerable as a target. It is also understandable that the Applicant feels that her private life is being criticised or complained about when the chairperson wishes to discuss the behaviour of her son, who is unwell. I have no jurisdiction to order that the Applicant bind herself to Wayne’s supervision, such as is suggested by the Respondent. This is a matter for Wayne’s medical advisors and the Applicant, and the civil law under which Wayne must live in the community.

For the reason that I have some sympathy for the difficult circumstances of the Applicant, I make no order as to costs.

`o`	the Applicant using the body corporate gardener
`o`	a statement made by the Respondent that Wayne "can not come back and live at home."

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Pacific Keys East 1-10 [2006] QBCCMCmr 421 (2 August 2006)