Il Villaggio [2006] QBCCMCmr 682 (20 December 2006)

Last Updated: 27 March 2007

REFERENCE: 0919-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28518
Name of Scheme:	Il Villaggio
Address of Scheme:	24 Radan Street SUNNYBANK HILLS QLD 4109

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

The Body Corporate for Il Villaggio

I hereby order that the application for an order under Section 167 of the Act, requiring that Ms Leigh ceases to cause a nuisance and a hazard and to interfere unreasonably with the use of lots and common property by other residents is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0919-2006

"Il Villaggio" CTS 28518

Application

The Body Corporate for Il Villaggio CTS 28518 has sought the following order against Toni Leigh, the owner of lot 31:

An order under Section 167 of the Act, requiring that Ms Leigh ceases to cause a nuisance and a hazard and to interfere unreasonably with the use of lots and common property by other residents.

Jurisdiction

Il Villaggio Community Titles Scheme (Il Villaggio) is a 40 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation 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)).

Grounds

The Body Corporate states their grounds as follows:

The body corporate believes that, in many instances, Ms Leigh has caused a nuisance and interfered unreasonably with the use of enjoyment of other lots and common property at the scheme. In particular, the body corporate would like to record the following grounds for requesting an Order under Section 167:

•

Dangerous driving around the grounds of II Villaggio: In August of this year several written and verbal complaints were made regarding the excessive speed of Ms Leigh whilst driving around the complex. Some residents were afraid that there would be accidents involving their children. A letter of complaint was sent to Ms Leigh by TEYS Strata (Brisbane) Pty Ltd in response to requests made by the committee members. Ms Leigh refused to acknowledge that she had been speeding and wrote a fetter accusing the body corporate manager of sending "frivolous, vexatious" correspondence. Ms Leigh further wrote to the secretary of the body corporate complaining about children using the shared driveway. As a result of Ms Leigh’s driving, the body corporate has expended approximately $400 on "shared roadway" signage to increase awareness of children and other pedestrians using the common roadways.

•

Claims of verbal abuse: In a letter of 11 September 2006 Ms Leigh accused both the onsite manager, Mr Peter Van Esseveld, and the body corporate chairperson, Mr Domingo Martinez, of verbal abuse towards her. Mr Van Esseveld had simply told Ms Leigh to leave his property after she had been found to pour oil over the doormat to the manager’s office. Mr Martinez had attempted to discuss with Ms Leigh the necessity of driving slowly in the complex. The police were subsequently called and a complaint made against Ms Leigh.

•

Anonymous mail-outs to owners: Owners at II Villaggio have been subjected to a series of anonymous mail-outs from "The I Villaggio Action Group". It is generally believed that Ms Leigh is a member of the "Action Group". These flyers contain criticism of the committee and individual committee members, together with the body corporate manager. They are unpleasant and sarcastic in tone, causing distress and concern to many of the owners receiving them.

•

Mail-outs using the onsite manager’s letterhead: Anonymous flyers from "Resident Owners" have been sent out on the letterhead used by the onsite manager, contradicting requests made by the onsite manager. These are misleading and confusing for residents. Again, these anonymous flyers are widely believed to originate from Ms Leigh and her associates.

•	Mail-outs correcting and grading spelling, grammar etc: Further anonymous flyers have been sent out ridiculing and correcting the English compositions of the onsite manager and the committee members. Again, widely believed to come from Ms Leigh and her associates.

•

Mailing out "amended" minutes: The committee minutes of 23 June 2006 were re-typed by Ms Leigh and her associates and re-sent to owners in the same format as previously used by TEYS Strata (Brisbane) Pty Ltd. Again, this was misleading and caused concern and confusion for owners. The tone of the document once again was extremely negative, critical and disrespectful of the committee and the body corporate manager.

•

Excessive submissions to the body corporate’s Annual General Meeting: Ms Leigh and her associates have submitted a total of 20 motions to the Annual General Meeting, amongst which are motions of "no confidence" in the committee and "no confidence" in the body corporate managers, as well as a motion to appoint an administrator after the body corporate for II Villaggio has already had one administrator less than 12 months previously. These motions are felt to be vexatious, and to be submitted in the hope of derailing the current committee, wasting the time and energies of the body corporate manager, and further confusing and distressing owners who have already been through a great deal of upheaval.

•

General harassment of onsite managers: It is the belief of Jane Lamason and Peter Van Esseveld, onsite managers of II Villaggio until 6 October 2006, that Ms Leigh and her associates generally harassed them during their time as onsite managers at the complex, a view which is supported by many owners. Ms Leigh and her associates have constantly made it difficult for the onsite managers to carry out their role, as outlined in their letter of support for this application.

•

Bank of Queensland account: Ms Leigh was a signatory of the body corporate’s Bank of Queensland account, which was used for committee expenses. After Ms Leigh was removed from the committee, she was asked to write to the bank giving approval for Stephanie Peech of TEYS Strata (Brisbane) Pty Ltd to close the account and transfer to funds to the body corporate’s trading account. Ms Leigh agreed to do this after a committee resolution had been recorded. The committee resolved that Stephanie Peech was to be given this authority. Ms Leigh then wrote to the Bank of Queensland stating that she could no longer operate the account, but did not authorise Stephanie Peech to close the account, as had been reqested. This left the body corporate in a position where the funds could not be transferred and is another example of malicious intent to cause a nuisance to the body corporate. Appendix K

In preparing this application, specific incidents have been limited to those in the recent past. However, it is felt by many owners at the complex that this behaviour has been going on for far too long and some sort of resolution must be achieved in order to enable owners and residents at I Villaggio to live in peace. The attitudes shown by Ms Leigh and her and her associates have been upsetting and unsettling owners and residents for many months now, and therefore this application is made in the anticipation that the Office of the Commissioner for Body Corporate and Community Management may bring this to a close.

The applicant has attached various appendices in support of their grounds.

Submissions

Six submissions were received in total. Four endorse the application made by the Body Corporate, and two oppose the application by the Body Corporate. One of those opposing the application is the respondent, Ms Leigh.

The respondent gives a narrative regarding her belief that a history of bad feeling has led to this application. She blames a particular individual for what she claims are false allegations made against her. The police have been involved in regard to some of the allegations made by the respondent and against the respondent.

She denies speeding and makes observations which are aimed at discrediting the allegations of speeding made against her. She makes counterclaims of verbal abuse, oil spray and other debris. She says she contributed to the flyers but did not distribute them. She says others have also circulated their own flyers. She says minutes were not retyped and were only presented in a similar format to help guide people to the amended items. She says the revised minutes were distributed with the flyers, so people knew their origins. She says the "letterhead" is not unique to the on-site manager and regardless, she had nothing to do with its distribution. She notes she has made corrections to 2 notices in 4 years but says the notice was given personally, not broadcast to her knowledge. She says she made 14 submissions to the annual general meeting, not 20 as alleged. She says these were joint submissions and she only did so as she was not receiving responses to her correspondence.

She suggests that the harassment alleged against the on-site managers, in fact travels the other way. In relation to the bank account, she explains the requirements she understood the bank required and attaches a copy of the correspondence she sent to the bank regarding signatories.

Determination

Unfortunately, I find that the basis of the applicant’s case is flawed.

In my view, the allegations of dangerous driving made by the applicant have not been made out. While there may be a sign within the scheme that advises a speed limit of 10 kilometres per hour (which I observe is not contained in the by-laws) it does not necessarily follow that the respondent was doing in excess of this speed or that the only safe speed is up to 10 kilometres per hour. In fact, it would be difficult to conceive how it is that any Body Corporate would be able to prove the speed at which someone is travelling without the benefit of police equipment.

I do suspect that parents have felt genuine concern for the safety of their children given the unpredictability of children. I must say however, that I do not quite understand why parents would allow their children to be on the pathways (with a toddler out of reach) if they perceive there has been a long history of dangerous driving on the respondent’s part.

On this point, I can only suspect that both sides of this argument could demonstrate a bit more community spirit in terms of slowing down to comfort others that there is a safety margin, combined with guardians taking steps to minimise the occasions upon which residents must exercise extreme caution.

In terms of alleged abuse and general harassment of on-site managers, I have formed the view that the respondent is likely "giving as good as she gets". While unfortunately this scheme appears to be suffering from a prolonged period of dysfunction, the incidents described by the owners of lot 40 do not amount to a course of conduct that I regard as nuisance. Differences of opinion, personality clashes and the occasional feud are part of all our lives. I am not inclined to make orders regarding nuisance where I am of the view that the animosity is quite mutual and fuelled by the parties playing off each other.

The distribution of mail-outs, amendments to minutes, numerous submissions to the annual general meeting and grammatical corrections can understandably be annoying. Unfortunately in the heat of some of these disputes, the parties can loose sight of the way their actions appear in the eyes of fellow owners. It is quite apparent to me that the Action Group tried to mimic the letterhead used by the resident managers, and I regard it as poor judgement. However, while a bombardment of these types of things can damage others’ receptiveness to the message the publishers are seeking to make, it does not mean that the publishers do not have a point worth considering or that their freedom of speech should be reduced to a "nuisance".

I am somewhat at a loss as to the reason that the confusion for the change of signatories to the bank account is sited as a nuisance. In any event, I am satisfied that the Body Corporate is now operating a bank account quite successfully.

I can only urge all parties to abandon the current campaign of one-upmanship that is making life within the scheme unpleasant not only for them, but their fellow residents. I agree that where occupants have safety concerns, they have a right to voice those concerns. I would urge the respondent to accommodate that concern and make a genuinely gracious effort to allay their fears. I urge all residents to set aside their "righteous indignation" and stop feeding the various fires by even reacting to each other’s provocations. Whether they agree with the other party’s point of view or not, all of us would like to be treated with respect for the views we express.

The application is dismissed.