Dorchester Place [2006] QBCCMCmr 514 (11 October 2006)

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

I hereby order that the application for an order –

"Request that owners in Unit 4 and Unit 5... stop invasion of privacy upon myself... by respecting my rights as an Owner/Occupier.

Request that owners in Unit 4 and Unit 5... cease age discrimination upon myself... by accepting that I have the best interests of my unit/the property regardless of my young age.

Request that owners in Unit 4 and Unit 5... cease idle gossip and harassment upon myself that is hurtful and damaging.

Request that owners in Unit 4 and Unit 5... reframe (sic) from entering/inspecting my windows/patio from front of property and inspecting my courtyard from back of property."

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0635-2006

"Dorchester Place" CTS 18858

APPLICATION

This is an application dated 7^th August 2006 and amended on 5^th September 2006 by Monica Storey (the Applicant) owner of Lot 3 in the scheme against Grace Corbett, co-owner of Lot 4, and Judith Brown, co-owner of Unit 5 (the Respondents) for an order that the Respondents refrain from invading the privacy of the Applicant by respecting her rights as a lot owner; cease ‘age discrimination ‘ upon her; cease idle gossip about her and harassment of her that is hurtful and damaging; and refrain from entering/inspecting the Applicant’s windows/patio from the front of her property and inspecting the Applicant’s courtyard from the back of the property.

JURISDICTION

"Dorchester Place" Community Title Scheme 18858 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 (the Standard Module). There are six lots in the scheme created under a Group Title 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 grounds are slight.

She says that from or since July 2005, she has been "treated as though (she is) not an equal by the owners of Units 4 and 5." She was at " the point of considering a DVO ( which I believe to be a Domestic Violence Order) because of the nature of the harassment" which she has suffered. The Respondents are "forceful, hurtful and bullying." She says that she has asked the body corporate manager for help although does not give details of such requests. The body corporate manager has not taken her seriously.

In January 2006 the Applicant installed a timer for watering her garden. The Respondent Grace Corbett turned it off. In February 2006, Respondent Judith Brown raised an issue at the Annual General Meeting about the Applicant’s air conditioning unit, which disappointed the Applicant as any complaint should have been made known to her first. In April 2006, following a burglary at her Lot, the Applicant suffered damage to her garage door and had to park outside her garage. "The neighbours were all aware of the door issues yet they lodged complaints."
Someone made a complaint to the body corporate that the Applicant had made a false claim ( I am understanding this to be to the insurers). The Respondents continually told the Applicant that she was a liar.

In August 2006, a complaint was received by the body corporate " in relation to" the Applicant’s cats. She is "now told that she may not have approval" to have cats.

She has regularly caught the Respondents on her property, on her garden area, looking through her windows, on her patio, and looking over the back fence into her private courtyard. The Applicant feels like a prisoner in her own home.

The Respondents made separate submissions. They deny that they have invaded the privacy of the Applicant. The Respondent Judith Brown of Lot 5 (Mrs Brown) says that she has spoken only twice to the Applicant once over two years ago to introduce herself, and once when the Applicant’s home was broken into. She denies discriminating against the applicant because of her age or at all. She has no interest in the personal affairs of the Applicant. She denies entering onto the Applicant’s property or inspecting her windows. Mrs Brown shares a dividing fence with the Applicant. She says she has contacted the body corporate once "about six weeks ago" to complain that the Applicant had emptied cat litter against the dividing fence because the smell was very bad on her side of the fence. She could see the cat-litter through the palings of the fence. She contacted the body corporate so that the Applicant might be asked to remove the cat litter, as she thought that the best way to deal with the matter. Mrs Brown believes that this complaint triggered the unsubstantiated complaints against her and Mrs Corbett.

The Respondent Judith Corbett of Lot 4 (Mrs Corbett) says she has only been into the Applicant’s lot once at her invitation; she has no interest in the personal affairs of the Applicant; she does not approve of any type of discrimination; she is friends with Mrs Brown but their talk is not bullying nor harassing anyone. She says that she turned off the Applicant’s watering system as it was on, on the wrong day for watering as approved by the Townsville City Council and she did not want the Applicant to get caught. She spoke to the Applicant about turning off the water and why she had done it. She has been on the committee for 25 years, and is currently Chairperson, so she spends time in the common property gardens which includes watering lawns, but she has not inspected the Applicant’s windows.

The Applicant did not exercise her right of reply.

DETERMINATION

The Applicant seeks four orders which when combined can be read as an application for orders that the Respondents cease causing a nuisance to the Applicant in contravention of section 167 of the Act. That section says as follows:-

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--

(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.

I can only make an order in respect of a breach of section 167. I cannot make an order to prevent the Respondents from talking to each other; nor to make them more pleasant to the Applicant. The order I can make is to prevent them, or either of then, from interfering unreasonably with the Applicant’s enjoyment of her lot or the common property.
The Applicant mentions that she " was considering a DVO" and it may be that if she feels such an application is warranted, that she takes steps to the appropriate authority for such an order. This Office has no jurisdiction to police social behaviour or right civil wrongs, save in the circumstances where such behaviour amounts to a breach of the legislation or the Community Management Statement, for example, where a by-law is breached.

The first and last items of the outcomes sought concern invasion of the Applicant’s privacy. Unless the watering device was on the Applicant’s lot, and the Respondent Mrs Corbett came onto the lot when she turned it off, the Applicant has provided no evidence at all that the Respondents or either of them have ever come onto her property. Even if this was the case, I would not find that such an action can be an invasion of privacy, or nuisance as intended by section 167. There are no examples given of times when the Applicant has "caught the Respondents on her property" or "on her garden area" or "on her patio" as alleged. In such circumstances, I would expect the Applicant to have asked the Respondents what they were doing on her property, and to have these details given to me. There are no such details, and the Respondents have not been able to answer such general allegations other than to deny that they have ever been on the Applicant’s property save for on the occasions stated in their submissions

Nor are there any examples of the circumstances about, or dates when, the Respondents or either of them have been looking through the Applicant’s windows, nor what steps the Applicant took on those occasions. There is no evidence at all, that the Applicant has spoken to the Respondents about her concerns. In short, there is no actual evidence of a dispute here.

If the behaviour by the Respondents was on-going and the Applicant had asked the Respondents to cease that behaviour and they had not, there would be a dispute. But the Applicant provides no evidence that she has remonstrated with the Respondents. She says that she has sought help form the body corporate manager, but provides no evidence of her requests for help, nor in what way the body corporate manager has not taken her requests seriously. eg by a letter refusing to intervene; by ignoring phone calls etc.

I note that parts of the common property are referred to as " our gardens" in the submissions, and it appears that in this scheme, respective lot owners have an area of the common property which they tend and treat as "their garden." Whilst the Applicant has given no evidence that this common property garden is the garden she refers to as "her garden area", if the allegation is that the Respondents go onto that part of the common property tended by the Applicant, then they are free to do so, provided that in doing so they do not breach the provisions of section 167. The Respondents are entitled to be on common property as is the Applicant.

The Applicant has given no evidence of the Respondents being " forceful, hurtful or bullying." The Applicant has given no evidence that the Respondents made the complaint about the cats, or that such complaint was unjustified. The Applicant has given no evidence that it was the Respondents who complained about her parking on common property, or told the body corporate she had lodged a false insurance claim, nor of any of the occasions when she was "continually" being called a liar by the Respondents.

There is not one shred of a mention about any circumstances in which the Applicant’s age may have been the cause of discrimination against her by the Respondents. There is no evidence about how the Respondents have harassed the Applicant, other than by looking through her windows and being on her property, which is not supported. Again there is no evidence of any occasion when the Respondents, or either of them, have looked into the Applicant’s courtyard from the back.

Try as I might, I can find firstly no evidence of a dispute here, and secondly no supporting grounds given by the Applicant. She has failed to prove her allegations. There is no evidence that the Respondents or either of them have acted unreasonably on common property or interfered with the Applicant’s enjoyment of her lot. This application is therefore dismissed.

Number of Scheme:	18858
Name of Scheme:	Dorchester Place
Address of Scheme:	46-48 Patrick Street TOWNSVILLE QLD 4814

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Dorchester Place [2006] QBCCMCmr 514 (11 October 2006)