Casablanca Lodge [2007] QBCCMCmr 39 (23 January 2007)

Number of Scheme:	10383
Name of Scheme:	Casablanca Lodge
Address of Scheme:	17 Riverview Parade SURFERS PARADISE QLD 4217

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

I hereby order that the application for an order:

That the owner/occupier of unit 8 stop parking vehicles upon common property without written permission of the body corporate. That the owner/occupier of unit 8 stop obstructing lawful use of common property.

is dismissed for lack of jurisdiction.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0854-2006

"Casablanca Lodge" CTS 10383

Casablanca Lodge community titles scheme (Casablanca Lodge) consists of 8 lots and common property. The community management statement for Casablanca Lodge indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 4807.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Mark Sartori, owner of Lot 4 (applicant) on 23 October 2006. The applicant sought orders against Ian and Lynette Linton, owners of Lot 8 (respondents) in the following terms:

PROCEDURAL MATTERS

In November 2006 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately all parties did not agree to conciliation.

Under section 243 of the Act, a copy of the application was provided to the respondents, the occupier of Lot 8 and the Body Corporate, with an invitation to the respondents, the occupier of Lot 8, the committee and all owners to respond to the matters raised in the application. A submission was made on behalf of the respondents. The applicant did not avail himself of the opportunity to inspect the submissions received or make a written reply (see sections 246 and 244 of the Act).

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to the complaint that vehicles from Lot 8 being parked on common property without permission from the Body Corporate. The application does not include a comprehensive statement of the grounds supporting the application but merely provides a collection of correspondence and photos. The apparant facts of the dispute can be summarised as follows.

In January 2006 the applicant first raised concerns with the Body Corporate Manager (BCM) for the scheme that the tenant in Lot 8 (Stephen Ninkie) was parking in the common area of the garage and allowing his guests to park there. He indicated that this made it difficult for him to get in and out of his garage, and noted that Lot 8 has a double lock up garage that is not being used.

On 24 January 2006 the BCM sent a letter purporting to be a Notice of Contravention of Body Corporate By-laws to the ‘resident’ of Lot 8 and also sent a copy to the respondents. On 8 February 2006 a further letter was sent to the occupier of Lot 8 advising that they were contravening by-laws 2, 3 and 6 and attaching a copy of the by-laws.

The applicant claims the occupier of Lot 8 continued to contravene the by-laws on at least 20 occasions since the first contravention notice was sent and has sent photos of some of these occurrences to the BCM. By October the conduct had apparently become ‘constant’. It appears the applicant has placed notices on the windscreen of the offending cars, on the recommendation of the BCM. When verbally asking the occupier of Lot 8 to remove the vehicles, the applicant was allegedly met with the response "I don’t care".
The submission from the respondents, as the owners of Lot 8, says that "obviously Mr Ninkie is not abiding by the by-laws". However the respondents claim that the applicant has also parked on common property and that he is being unreasonable. They say that their property managers are doing all they can on the matter but give no indication as to what exactly that action is.

The property manager for the respondents queried why the application was against the owners of the lot when the dispute had been with the occupier of Lot 8. A submission was invited from the occupier but he initially declined, apparently because he thought the applicant was moving out. He later indicated that he would make a submission but no such submission was received.

JURISDICTION

There are various concerns regarding whether this application falls within the jurisdiction of the Act as established by the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act). I will address these issues in the course of my determination.

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)).

DETERMINATION

The apparent issue in this matter is whether any Body Corporate by-laws have been breached. However there are fundamental preliminary issues regarding the parties to the dispute and whether the requisite processes for disputes about by-law breaches had been followed.

Applicable by-laws

Casablanca Lodge was first registered in 1982 under the Building and Group Title Act 1980 (BUGTA), which applied to schemes prior to the commencement of the Act. The community management statement (CMS) for Casablanca Lodge that was registered on 15 July 2000 under the Act states that the by-laws for the scheme are taken to be those in effect as at 13 July 2000. As no other by-laws have been registered, the by-laws are deemed to be those contained in Schedule 3 of BUGTA.^[1]

Accordingly, the relevant by-laws in Schedule 3 of BUGTA state:

Save where a by-law made pursuant to section 30(7) of this Act authorises a proprietor or occupier to do so, the proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.

A proprietor or occupier of a lot shall take all reasonable steps to ensure that his or her invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

Section 94 of the Act provides that the body corporate administers, manages and controls the common property, and must do so reasonably and for the benefit of owners. Section 94(1)(b) of the Act imposes a duty on the body corporate to enforce the community management statement, including the by-laws.

Status of the applicant

The applicant has verbally advised this Office that he is selling his lot and suggested that settlement will be at the beginning of February. However he indicated that he wishes to proceed with the dispute, notwithstanding the sale, because he believes the occupier of Lot 8 needs to be made to comply with the by-laws and because he owns another unit in the complex.

Section 227 of the Act defines a dispute by reference to the allowable parties to a dispute, which includes a dispute between an owner or occupier and another owner or occupier. If an applicant is an owner at the time that they lodge a dispute they technically have standing to pursue the dispute even if their status changes during the course of the dispute. However this situation is qualified when an applicant has no continuing interest in the outcome sought. Section 238(1) of the Act refers to an applicant as a person who is a "...party to, or directly concerned with, a dispute...". If an applicant seeks reimbursement of disputed fees, their interest would clearly exist beyond the sale of their lot. But if an owner sells their lot and no longer resides in the scheme I consider that they would have no continuing interest in alleged breaches of a noise by-law.

If the applicant in this case had sold his lot, and the transfer had been effected prior to the determination of this dispute, I consider he would not have a continuing interest in the dispute. While he may want to see action against the occupier, he would no longer be personally or directly affected by any by-law breach. Although the applicant has apparently said that he owns another lot in the scheme, this is not evident from titles records. Another lot is owned by a person with the same surname as the applicant, presumably a relative, but that person would need to pursue any dispute in their own name.

Notwithstanding that, Department of Natural Resources and Water records still show the applicant as the owner of Lot 4 and accordingly he is still entitled to pursue this dispute at this time.

Status of the respondent

While the outcome sought in this application refers to the "owner/occupier", the applicant has named the owners of Lot 8 as the persons against whom the outcome is sought. Despite this, it is clear from the enclosed documentation that the applicant is well aware that the alleged by-law breaches were being committed by the occupier of Lot 8 and not the owners of Lot 8.

In the circumstances of this dispute, an order can only be made against the named respondent to the dispute. When the occupier of Lot 8 has not been named by the applicant as the respondent to the dispute I cannot properly make an order that the occupier of Lot 8 cease parking on or obstructing the use of common property. As the applicant has presented no evidence that the owners of Lot 8 has personally breached the by-laws, there is no basis upon which I can justify an order that the owners of Lot 8 cease parking on or obstructing the use of common property.

As discussed below, a potential alternative for the applicant is to name the Body Corporate as the respondent to the dispute and seek an order that the Body Corporate take action against the occupier of Lot 8 for alleged by-law breaches.

Preliminary processes for by-law disputes

Sections 182 to 188 of the Act provide the processes for pursuing an alleged by-law breach. These sections outline the steps which must be followed before a dispute resolution application alleging a breach of by-laws can be lodged.

When a body corporate is pursuing a by-law issue, the first step is generally to issue a contravention notice to the person who it reasonably believes is breaching the by-laws. A continuing contravention notice (section 182) normally applies to a continual breach (such as an installed but unauthorised air conditioner) and a future contravention notice (section 183) would normally be most relevant when a breach has occurred in the past and is expected to be repeated (for example excessive noise on a regular but not constant basis).

The Body Corporate can use BCCM Form 10 (Notice of continuing contravention of a body corporate by-law) or BCCM Form 11 (Notice regarding likely future contravention of a body corporate by-law)^[2]. However, if they choose not to complete one of these forms, as a minimum the Act requires that they must ensure the contravention notice states:

These elements must be included in a single notice, and not in a series of purported notices.

For the information of the parties, I have concerns about the validity of the purported contravention notices issued by the Body Corporate. The first letter on 24 January 2006 appears to satisfy requirements (a), (c) and (d) but does not indicate what by-laws are allegedly being breached or the consequences of failing to comply with the notice. The second letter on 8 February 2006 appears to satisfy (a), (b) and largely (c) but does not address (d) or (e).

If the issuing of a contravention notice does not rectify the matter, a body corporate can either commence proceedings in the Magistrate’s Court or may lodge a dispute resolution application in the Commissioner’s Office. It is noted that a body corporate can only issue contravention notices and lodge applications against the person allegedly breaching the by-laws – in this case the occupier of Lot 8 rather than the owners of Lot 8.

If an owner or occupier wishes to pursue a by-law breach, as is the case in this application, section 185 of the Act provides that their first step is to request the body corporate (using BCCM Form 1) to issue a by-law contravention notice. If the body corporate advises the complainant within 14 days that a contravention notice has been issued, the complainant’s can only lodge an application against the body corporate for failing to enforce the contravention notice. If the body corporate fails to issue a contravention notice, or to advise within 14 days that they have issued a contravention notice, the complainant can lodge an application in this Office against the person who is allegedly breaching the by-laws.

On 2 November 2006 a member of the Commissioner’s staff advised the applicant that there were concerns with the application in that it arguably should have been lodged against the Body Corporate or that a BCCM Form 1 should have first been sent to the Body Corporate. The officer put the applicant on notice that an adjudicator may determine that the application in its current form did not comply with the legislation. The file note records that the applicant acknowledged this.
In the process of attempting to organise conciliation for this dispute, another member of the Commissioner’s staff also specifically referred the applicant to the Office’s website to obtain a copy of BCCM Form 1 and the By-laws fact sheet which explains the process of enforcing by-laws including the preliminary procedures for by-law applications.

Conclusion

In the absence of a submission from the occupier of Lot 8 it appears quite likely that the occupier of Lot 8 has breached at least By-law 2, although the application does not clearly explain or establish any breach of By-laws 3 or 6. However, there are numerous procedural difficulties with the current application:

Because the applicant has not complied with the preliminary procedures required in section 185 of the Act, I consider that he is not entitled to lodge the application. Accordingly I have no jurisdiction to determine whether the by-laws have or have not been breached and by whom. For this reason I must dismiss the application.

If the applicant continues as an owner he may wish to pursue the matter following the appropriate procedure, by issuing a BCCM Form 1 request to the Body Corporate and, if necessary and depending on the response, lodging a further application against either the Body Corporate or the occupier of Lot 8.

In the meantime I would encourage the occupier of Lot 8 to take seriously his obligation to comply with the Body Corporate by-laws, which are legally binding upon him and are set in the interests of all owners and occupiers in the scheme. To continue to ignore the by-laws risks direct legal action. I would also encourage the owners of Lot 8 and their property managers to consider utilitising whatever avenues are open to them within the context of the lease agreement to pursue their tenant’s compliance with the by-laws. Finally I would encourage the Body Corporate Committee to remember its obligation, on behalf of the Body Corporate, to enforce the by-laws and to be proactive in using the processes provided under the Act to address by-law breaches. I would also suggest that they consider using the BCCM Form 10 and 11 for contravention notices to ensure that all requirements of the Act for such notices are met.

^[1] See section 339(5)(a) of the Act and section 30 of the BUGTA.
^[2] Available from the Commissioner’s Office on 1800 060 119 or www.bccm.qld.gov.au

	the applicant has not requested the Body Corporate (using BCCM Form 1 as required by section 185 of the Act) to issue a by-law contravention notice;
	in the absence of a BCCM Form 1 request, the applicant is only entitled to pursue this issue in this Office by seeking an order against the Body Corporate for failure to enforce the by-laws (although any such application would need to justify why a BCCM Form 1 request had not been made);
	even if the applicant had made a BCCM Form 1 request, he has not lodged his application against the person who he is alleging has breached the by-laws; and
	as the person who has allegedly breached the by-laws has not been named as a respondent to this dispute I am unable to make any order, if warranted, that the person concerned cease breaching the by-laws.

(a)	that the body corporate believes the person is breaching the by-laws;
(b)	the provision that the body corporate believes is being breached;
(c)	sufficient details to identify the contravention;
(d)	the period within which the person must remedy the contravention; and
(e)	that the body corporate may state proceedings in the Magistrates Court or lodge a dispute resolution application if the person does not comply with the notice.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Casablanca Lodge [2007] QBCCMCmr 39 (23 January 2007)