Il Villaggio [2007] QBCCMCmr 24 (16 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0920-2006

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 Geoffrey and Valda Ivett cease 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 0920-2006

"Il Villaggio" CTS 28518

Application

The Body Corporate for Il Villaggio CTS 28518 has sought the following order against Geoffrey and Valda Ivett, the owners of lot 24:

An order under Section 167 of the Act, requiring that Mr and Mrs Ivett cease 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, Mr and Mrs Ivett have 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:

•

Anonymous mail-outs to owners: Owners at Il Villaggio have been subjected to a series of anonymous mail-outs from "The Il Villaggio Action Group". It is generally believed that Mr and Mrs Ivett are members 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 Mr and Mrs Ivett and their 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 Mr and Mrs Ivett and their associates.

•

Mailing out "amended" minutes: The committee minutes of 23 June 2006 were re-typed by Mr and Mrs Ivett and their 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: Mr and Mrs Ivett and their 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 Mr and Mrs Ivett and their associates generally harassed them during their time as onsite managers at the complex, a view which is supported by many owners. Mr and Mrs Ivett and their 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: Mrs Ivett was a signatory of the body corporate’s Bank of Queensland account, which was used for committee expenses. After Mrs Ivett 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. Mrs Ivett agreed to do this after a committee resolution had been recorded. The committee resolved that Stephanie Peech was to be given this authority. Mrs Ivett 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 Mr and Mrs Ivett and their 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 its grounds.

Submissions

Submissions were received from the owners of 5 lots. One was neutral, two supported the application and two supported the respondents.

The respondents sent a detailed submission which included the following:

 They advise that they are members of the Action Group that sent the mail outs based on concerns regarding certain events within the scheme;
 They point out differences in the header of the mail sent out which is alleged to be the on-site managers letter head. They observe the font used is easily available;
 They state that the correspondence correcting grammar and the like was not generally made available to all residents;
 They give reasons as to why the amendments to minutes were justified;
 They say that others have distributed substantial volumes of materials and ask where one draws the line on "excessive";
 They say that the number of motions submitted to the annual general meeting is wrongly stated and that others have also made multiple submissions in the past;
 They specifically address items contained in the grounds statement regarding general harassment.

Finally they advise that they have a contract of sale on their residence which is due for settlement on 15 December 2006. At 16 January 2007, I am unable to see that transfer has taken place.

Determination

As circumstances would have it, I also dealt with a similar application in relation to another resident within this scheme. The outcomes sought and the grounds submitted are the same in relation to most items. I have little doubt the outcome of this application is now well anticipated, so in the circumstances I will simply extract the relevant portions of that decision here.

"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 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".

This application is also dismissed.