Glades Easthill North [2006] QBCCMCmr 737 (20 September 2006)

Last Updated: 29 March 2007

REFERENCE: 0441-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32506
Name of Scheme:	Glades Easthill North
Address of Scheme:	Easthill Drive ROBINA QLD 4226

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David Huddy, the co-owner of Lot 28

I hereby order that the application for an order by David Huddy, the co-owner of Lot 28 against the body corporate for Glades Easthill North community titles scheme 32506 seeking the following outcomes: 1. That the Body Corporate be directed to issue By Law contravention notices as requested in my notices of 8 May 2006 to those occupiers still in breach of by laws. 2. That the Body Corporate be directed that it must enforce all By Laws, equitable, on all occupiers and owners, without fear or favour. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0441-2006

"Glades Easthill North" CTS 32506

APPLICATION

This application is by David Huddy, the co-owner of Lot 28 (applicant) against the body corporate. The applicant is seeking the following outcomes, quote:

1. That the Body Corporate be directed to issue By Law contravention notices as requested in my notices of 8 May 2006 to those occupiers still in breach of by laws.
2. That the Body Corporate be directed that it must enforce all By Laws, equitable, on all occupiers and owners, without fear or favour.

The applicant’s main submissions were to the effect that:

• By notices in the approved form dated 8 May 2006, he asked the body corporate to give by-law contravention notices to:
− The owner of Lot 5 for contravening By-Law 1.
− The occupiers of Lot 15, 30, 37, 38 and 49 for contravening By-Law 1.
− The owners of Lot 1 and 6 for contravening By-Law 2.1.
− The occupier of Lot 22 for contravening By-Law 2.1.
− The owner of Lot 46 for contravening By-Law 3.1.
• He sent these notices to highlight that the committee is not enforcing By-Laws, and that committee members are contravening By-Laws.
• The By-Laws set standards to enhance the enjoyment of facilities by all residents, protect the comfort and security of residents and protect property values.
• He is concerned that some occupiers ignore the By-Laws and that the committee do not enforce the abovementioned By-Laws as opposed to other By-Laws.
• The committee is responsible for ensuring that all owners and occupiers comply with the By-Laws.

JURISDICTION

"Glades Easthill North" Community Titles Scheme 32506 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

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 claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement^[1]. An order may require a person to act, or prohibit a person from acting, in a way stated in the order^[2]. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate^[3].

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the committee. A submission was received from the committee. The applicant made a written reply to submissions under section 244 of the Act.

The body corporate’s main submissions were to the effect that:

• The applicant delivered the notices in the approved form dated 8 May 2006 to the body corporate manager.
• The notices were issued to the owners named on 8 May 2006 with a covering letter. This letter dated 8 May 2006 stated that the committee had received correspondence from the applicant alleging breach of By-Laws which will be tabled at the next committee meeting; that this action had no input from committee members; and that legal advice is currently being sought about the alleged breaches at the cost of residents. The occupiers of Lot 15 and 38 responded questioning the complaint.
• The committee did not take any further action as the applicant had not provided any evidence of the claimed breaches, such as vehicle identification.
• The committee referred the issue relating to the weight of vehicles to owners at the Annual General Meeting dated 13 July 2006 (the AGM). The Minutes of the AGM indicate By-Law 2.1 was resolved to be amended to increase the allowable weight to 3 tonnes.
• The committee will enforce the By-Laws as required to ensure a safe and pleasant living environment.
• The applicant has made 2 other dispute resolution applications and does not consult with the committee before making applications denying the committee the ability to advise him and resulting in major costs being incurred by the body corporate. The applicant is vexatious as the matters being referred as relatively minor and are believed to stem from the applicant’s removal from the committee.

In the written reply to submissions, the applicant stated:

• The committee should have dealt with the complaints more appropriately and should have investigated the breaches.
• That given the resolution on By-Law 2.1, the weight of vehicles issue is no longer relevant.
• The secretary of the body corporate is aware of the breaches of By-Law 1 by the occupiers of Lots 30 and 49.
• The committee, at its meeting dated 10 August 2006 (on the basis of a complaint from the owner of Lot 46, a co-owner of which is the secretary) resolved to give a by-law contravention notice to the occupiers of Lot 49 for a contravention of By-Law 1. The committee did not call for proof or evidence which is an example of double standards.
• With respect to the breach of By-Law 1 by the occupier of Lot 30, 2 committee members live opposite Lot 30 and would be well aware of the breach.
• He will continue to challenge the committee while it is selective in the enforcement of by-laws and "attempts to ride roughshod over my (his) interests, and those of other owners".

DETERMINATION

Applicable law
The body corporate’s general functions include enforcing the community management statement (including any by-laws for the scheme)^[4]. The body corporate must act reasonably in anything it does under section 94(1)^[5].

The by-laws form part of the community management statement (the CMS) for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers.

Sections 184 and 185 state the preliminary procedures to be taken by a body corporate and a lot owner or occupier for by-law contraventions. These provisions were included in the Act with the 2003 amendments approved by Parliament. The purpose of the amendments is stated in the explanatory notes^[6]:

Clause 60 Insertion of new ss 145A–145D

Clause 60 contains the preliminary procedures for a body corporate, or an owner or occupier of a lot in a community titles scheme where there is a reasonable belief that an owner or occupier of a lot has contravened a bylaw and given the circumstances it is likely that the contravention will continue or be repeated. The amendments ensure that a body corporate assumes responsibility for carrying out its functions by undertaking action to enforce its by-laws, and encourages a body corporate to attempt to resolve a by-law dispute itself (my bolding)...The owner or occupier of a lot may only make an application under the chapter 6 dispute resolution provisions after that person has asked the body corporate to give a contravention notice to an owner or occupier of a lot, and the body corporate does not, within 14 days of receiving the request, advise the person that a contravention notice has been given.

Consequential amendments were also made to section 144 (renumbered to section 182) dealing with the continuing contravention notice which may be given by the body corporate to a person who the body corporate reasonably believes is contravening a provision of the by-laws. The explanatory notes for the amendment relevantly stated^[7]:

Clause 58 Amendment of s 144 (Continuing contravention notice)

Clause 58 relates to situations where the body corporate, or an owner or occupier of a lot in a community titles scheme, reasonably believes that an owner or occupier of a lot is contravening a by-law and given the circumstances it is likely that the contravention will continue. In these circumstances the body corporate may issue a "continuing contravention notice"...Amendments have been made to firstly make bodies corporate assume more responsibility for the enforcement of its by-laws...Bodies corporate will now be required to attempt to resolve by-law matters before seeking the intervention of a dispute resolution process (my bolding). This amendment is aligned to the amendments in clause 60 and requires the contravention notice to be given before an application can be made under the dispute resolution provisions of the Act. The clause 60 amendments also require a lot owner or occupier to advise the body corporate of a by-law contravention, and provide that the lot owner or occupier can only make an application for the resolution of a dispute where the body corporate does not initiate processes itself to seek by-law compliance. The amendment in clause 58(2A) is administrative and places an obligation on a body corporate which has received a complaint from a lot owner or occupier about a by-law contravention. The amendment only applies if the body corporate gives a contravention notice and requires the body corporate to advise the concerned lot owner or occupier that a contravention notice has been given. The period of 14-days is appropriate as it gives the body corporate an opportunity to consider the complaint while not unreasonably restricting the existing right of a complainant to make an application for the resolution of a dispute (my bolding).

Outcome sought 1 - That the Body Corporate be directed to issue By Law contravention notices as requested in my notices of 8 May 2006 to those occupiers still in breach of by laws.
Section 185 provides that where the complainant (the applicant) "reasonably believes" that a provision of the by-laws has been contravened by the owner or occupier of a lot included in the scheme and that it is likely that the contravention will continue or be repeated, the complainant must (in most cases) ask the body corporate to give the owner or occupier a by-law contravention notice. Section 182(1) provides a similar test to the body corporate requiring that the body corporate may give the contravention notice where it "reasonably believes" an owner or occupier is contravening a provision of the by-laws and in the circumstances, it is likely that the contravention will continue.

The applicant gave notices using the necessary approved form to the body corporate as required by section 185 of the Act. It is important to recognise that the applicant must take this action (unless excused by the legislation) before making a dispute resolution application. As stated in the abovementioned references to the explanatory notes, this requirement places some responsibility on the body corporate about the enforcement of by-laws.

However, rather than investigate or give consideration to the complaints, it would seem that the body corporate committee only informed the accused persons by letter dated 8 May 2006. The letter would appear to be from the committee, yet there is no indication how the committee reached this decision given the legislative requirements for committee decision making^[8]. The letter does not indicate that the body corporate will be pursuing the matters raised within 14 days of receipt of the request. Given that the applicant must ask the body corporate to give a contravention notice before involving the dispute resolution process, the 14 day period is important as it provides the opportunity for the body corporate to give consideration to the complaint. Further, the indication that legal advice would be sought is questionable given the improbability of the letter being properly authorised. Additionally, there is no indication that despite the statement in the 8 May letter, that the committee has tabled the notices. In my view, the actions taken by the body corporate after receipt of the approved forms do not indicate compliance with its obligations under sections 94 and 182 of the Act.

The committee is the elected representative body of the body corporate. The committee has the power to make body corporate decisions and is obligated in doing so, to act reasonably and for the benefit of lot owners. The body corporate could have managed the applicant’s complaints more effectively and promptly. There is no requirement that the body corporate immediately notify the accused person in the manner that occurred. However, the committee could have sought further information from the applicant and possibly sought to positively deal with the issues, without having to involve all the accused persons which could easily have the result of provoking the situation. By ignoring the complaints, the applicant was left with no alternative but to refer the matter for dispute resolution. While the applicant could have made applications against the accused owners and occupiers demonstrating the claimed contraventions of the relevant By-Law provisions, he chose to name the body corporate.

It would seem that the applicant’s concerns about By-Law 2.1 have been superseded by the body corporate resolution at the AGM to amend the By-Law to increase the allowable weight to 3 tonnes. It should be noted that the amendment will not have effect until a new CMS is recorded under the Land Title Act 1994^[9]. However, the concerns relating to the contraventions of By-Laws 1 and 3.1 are outstanding. It would seem that the committee has decided to initiate actions against the occupier of Lot 30, not as a consequence of the applicant’s notification, but after a complaint from a committee member. In my view, this action does sustain the claims being made by the applicant about reasonableness.

However, I do not consider that there is any ground to require the body corporate to act as proposed by the applicant. The body corporate is required to give notice to a person on the basis of the criteria stated in section 182(1) and I am not satisfied that the criteria is satisfied to the extent necessary to compel the body corporate by order to give a section 182 notice. The mere giving of an approved form under section 185 of the Act does not compel the body corporate to give a contravention notice. For this reason, I am not satisfied that an order is necessary in the terms being sought.

Notwithstanding this decision, the body corporate should have given proper consideration to each of the notices and in a reasonable manner. If the applicant wishes to pursue a contravention against a particular owner or occupier he reasonably believes exists, he may consider again asking the body corporate to give a contravention notice. If the body corporate does not advise the applicant as required under section 182(3) or 183(3), the applicant may consider making a dispute application against that particular owner or occupier. In making this application, the applicant would need to demonstrate that he reasonably believes that the provisions of a By-Law are being contravened by the owner or occupier. In this instance, the body corporate may be required to explain why it did not give a section 182 notice to the accused person.

The body corporate submits that the actions of the applicant in making dispute resolution applications are vexatious. For the above reasons, I do not agree.

Outcome sought 2 - That the Body Corporate be directed that it must enforce all By Laws, equitable, on all occupiers and owners, without fear or favour.
I have dealt with this matter in the preceding paragraphs. The body corporate’s obligations are clearly stated in section 94 of the Act. Given these obligations, the body corporate must act reasonably, and whether an action is reasonable is dependent on particular and identifiable circumstances. I do not consider that an order is appropriate or necessary to restate these obligations for possible future unknown claims that provisions of the scheme’s By-Laws are being contravened.

For these reason, this outcome sought is dismissed.

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^[1] Section 276(1), Act.
^[2] Section 276(2), Act.
^[3] Section 284(1), Act.
^[4] Section 94(1), Act.
^[5] Section 94(2), Act.

^[6] Body Corporate and Community Management and Other Legislation Amendment Bill 2002, Explanatory Notes, pages 48 to 49. Note that sections 145A and 145B are renumbered to sections 184 and 185.
^[7] Ibid., pages 47 to 48.
^[8] See sections 25 to 33, Accommodation Module.
^[9] Section 59(1), Act.