Araucaria [2008] QBCCMCmr 249 (22 July 2008)

Number of Scheme:	GTP 1790
Name of Scheme:	Araucaria
Address of Scheme:	Sanctuary Cove QUEENSLAND QLD 4212

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

I hereby order that John Massey, as owner of Lot 1 “Araucaria” GTP 1790 refrains from bringing a caravan/mobile site office onto his lot, or permitting it on his lot, unless it can be parked in a manner which complies with the by-laws for Araucaria and the Principal Body Corporate;

I further order that John Massey pays to Sanctuary Cove Principal Body Corporate the sum of $350 (Three Hundred and Fifty Dollars) as reimbursement for the hire of safety barriers and lights, within 14 days of the date of this order.

This is an application dated 28th March 2008 (but not received by this Office until 1st April 2008) by Sanctuary Cove Principal Body Corporate (Sanctuary Cove), which is the principal body corporate for a residential parcel named “Araucaria” registered Group Title Plan 1790 (Araucaria). Sanctuary Cove seeks an order against John Massey, (Mr Massey) the owner of Lot 1 in Araucaria, that he removes a caravan from Sanctuary Cove’s land and complies with the Residential Zone Activities By-laws By-law for Sanctuary Cove. In the grounds of the application, Sanctuary Cove also seeks the cost of putting up barricades and lighting near the caravan as a safety measure.

On 16th April 2008, I made an interim order that Mr Massey must cause the caravan to be removed from a position in Lot 1 where it extended beyond Lot 1’s gateposts, thereby causing a hazard, within two days of the date of the order. The vehicle has since been removed.

“Araucaria” is a group title plan established as part of Sanctuary Cove Resort which is governed by the Sanctuary Cove Resort Act 1985, (a “specified Act” under the Body Corporate and Community Management Act 1997) and the Building Units and Group Titles Act 1980 (BUGTA) as amended. By section 23(3)(b) Sanctuary Cove Resort Act 1985, “Araucaria” is a member of the Principal Body Corporate.

Section 104A of the Sanctuary Cove Resort Act relates to disputes and provides that “[u]nless otherwise provided in this Act, a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5”. Part 5 of BUGTA deals with disputes. However, Part 5 of BUGTA does not define “dispute” by reference to the parties to a dispute or by reference to the sorts of dispute that may be referred to this Office.

In the interim order of 16th April 2008, I set out in detail the reasons why Sanctuary Cove was empowered to enforce its Residential Zone Activities By-law against a proprietor in Araucaria; and why Sanctuary Cove might bring an application before a referee for an order for such enforcement. I found that Sanctuary Cove’s by-laws and Araucaria’s by-laws were very similar, and that By-Law 4.4 of the Residential Zone Activities By-law currently has force and effect, binding Mr Massey.

Sanctuary Cove was of the view that Mr Massey was in breach of Residential Zone Activities By-Laws 4.4 by parking the vehicle on the Secondary Thoroughfare nature strip outside his lot, some time before 4th January 2008. That by-law reads as follows -

Sanctuary Cove asked Mr Massey several times to remove the caravan from the secondary Thoroughfare. It submits that on about 4th January 2008, Mark Morton (Mr Morton) an employee of Sanctuary Cove, spoke to Mr Massey on the telephone and asked him to move it. Then on 15th January 2008, Mr Morton, operations manager of Sanctuary Cove, wrote to Mr Massey, referring to a ”meeting at your residence Friday 4th of January 2008” and citing By-Law 4.4(a) and 4.4(b), asking him to remove the vehicle. On 31st January 2008, Mr Morton wrote again to Mr Massey, saying that failure to remove the vehicle by 8th February 2008 would result in the Principal Body Corporate arranging for its removal at the owner’s expense. On 7th February Barry Hildebrand, (Mr Hildebrand) chief of security at Sanctuary Cove and Mr Morton went to ‘6010 Araucaria’ and “spoke with John Massey,” when he acknowledged receipt of the letter from Sanctuary Cove. They told him that Sanctuary Cove would remove the caravan “on Saturday at his expense.”

Mr Massey then moved the caravan prior to 14th February 2008 to a position partly in his driveway and partly sticking out onto the Secondary Thoroughfare. The front towing bar protruded onto the Secondary Thoroughfare, and Sanctuary Cove became concerned about the vehicle being a hazard.

On 14th February 2008, Mr Morton wrote again to Mr Massey, pointing out that the removal of the caravan failed to meet compliance with By-Law 4.4 (a) and (b), which he again quoted. Mr Massey was asked to arrange relocation of the caravan in compliance with the by-laws.

On 25th February 2008 at a committee meeting of Sanctuary Cove, the operations manager was asked by the committee to arrange for barriers to be installed on the secondary thoroughfare around the protruding part of the vehicle as a safety measure.

On about 27th February 2008, Sanctuary Cove put up two barriers and installed lights on either side of the caravan on the Secondary Thoroughfare. The barricades and lights were at a cost of $50 per week as quoted by Grounds and Gardens Unit Trust of Bundall. Sanctuary Cove provides a work order number 00001202 with the details of this hire arrangement.

On 14th March 2008, Sanctuary Cove Body Corporate Services, the body corporate manager, also wrote to Mr Massey and asked him to comply with the by-laws within 7 days.

Mr Massey made submissions at the interim order stage on 12th and 13th April 2008, saying that he had never had any communication with Mr Hildebrand or Mr Morton at all, and therefore challenged their respective claims that they have written to him, spoken to him and telephoned him. He thinks they may have spoken to an occupant of his property and not to him as owner. He said that he has not lived at the unit since 4th December 2007.

His final order submissions dated respectively 19th May 2008 and 29th May 2008, repeated this assertion. He says that his mail box was unavailable until 29th April 2008 so that he had not received mail dated 15th January 2008 and 31st January 2008 from Sanctuary Cove. He says that the occupant of his lot was the person who arranged with the owner of the caravan to move it without reference to him, and he had no knowledge of Sanctuary Cove’s concerns about it being a hazard. He says that “placing the mobile site office in front of or on my property, and subsequently removing it was all done without any reference to me.” He does not think that he should be liable for any costs for barricades and lighting. He confirms that “the caravan/builders site office is now not in Sanctuary Cove at all” so the application should be dropped.

In Reply, Sanctuary Cove say that its letter dated 15th January 2008 was sent by standard post and the letter dated 31st January 2008 was sent by registered post, as were the letters dated 14th February 2008 and 14th March 2008. None of these letters were returned to sender. It points out that mail from this office dated 3rd April 2008 was sent to Mr Massey’s post office box.

It submits that Mr Massey advised the body corporate manager that the reason for delay in receiving correspondence was that the account for his post office box was overdue and it was released on 30th April 2008 upon payment. It attaches a copy of an email sent by Mr Massey to the body corporate manager, Scott Gibson, on 30th April 2008, saying that he “ did not have access to our mail box till today when we paid our overdue account.”

Sanctuary Cove further says that Mr Massey’s interim submissions should have been made by 10th April 2008 and were made out of time. With regards to his mistaken identity, Sanctuary Cove says that Mr Massey “ is known to the principal Body Corporate including Mr Morton and Mr Hildebrand.”

Mr Massey moved the caravan on about 12th or 13th April. Sanctuary Cove says that following the removal of the caravan by Mr Massey, it removed the lights and barriers on 16th April 2008. It claims a total of seven weeks hire at $350.00. Sanctuary Cove wants the final order worded in a way which enable it to take steps at any time in the future should the caravan be returned to the property, and that Mr Massey shall continue to comply with the by-laws.

In the interim order I found that By-Law 4.4(b) had been breached. The vehicle was a “recreation vehicle” within the meaning of the by-law and therefore could only be parked on a lot if wholly within the lot and screened so it is not visible from any other lot. Further, the vehicle when parked partly on lot 1 and partly overhanging the Secondary Thoroughfare constituted a hazard.

Mr Massey has not addressed this aspect at all in his submissions but states that it was not he who parked the vehicle in that position, and that he did not know about Sanctuary Cove’s concerns. Since he was ignorant of the facts, he should not have to pay for the erection of barriers and lighting.

Mr Massey denies that he received a telephone call from Mr Morton as alleged. This is a matter of evidence which cannot be tested and I cannot put any weight on the alleged phone calls or the alleged personal meetings, also denied by Mr Massey.

However, if it is accepted that Mr Massey was not receiving his mail and did not know about the concerns which Sanctuary Cove had with the parked caravan, I find that this was a matter totally of his making. His mail box was not available to him until either 29th April or 30th April 2008. The reason for this, for example, whether an account was overdue, is, in my view irrelevant. If the post office box address given to the body corporate was the box number to which Sanctuary Cove sent mail to Mr Massey, then it is up to Mr Massey to make that box available to him. If he chooses not to go to his post box, or not to collect his mail, or not to ensure that the postal service he requires is available to him, then this is a matter for him.

It is not denied by Mr Massey that his postal box address is PO Box 802 Sanctuary Cove which was the address used by Sanctuary Cove in its letters of 15th January, 31st January, 14th February and 14th March 2008. He refers to this in his submission as his ‘previous mail box’ which was ‘reinstated’ on 29th April 2008.

Mail sent from this Office on 3rd April 2008 was also emailed on the same day, but Mr Massey advised this Office on 11th April 2008 that he had not received either his mail or the email. Mr Massey was given an extension until 14th April 2008 to make interim submissions and this was advised to the body corporate manager by telephone on 11th April 2008, first relayed in a phone message at 12.20 pm and then Scott Gibson telephoned this Office at 1.14pm and spoke to Christine Wilson about Mr Massey’s extension of time. I do not find that the interim submissions, even if they were now relevant, were made out of time.

Sanctuary Cove seeks the sum of $350 for seven weeks hire of barriers and lights from 27th February 2008 until 16th April 2008 at $50 per week.

Section 78 BUGTA empowers a referee to make an order requiring that a party to the dispute pay a sum not exceeding the sum of $1000 to a person specified in the order.

78 Further powers of referee
(1) A referee is empowered to make an order that—

(a) requires a party to the dispute before the referee to pay money not exceeding the sum of $1000 to a person specified in the order;
(b) requires a party to the dispute before the referee to do, or refrain from doing, some specified act to which the application relates;
(c) strikes out for want of jurisdiction the dispute before the referee.

(2) An order made by a referee may direct that the order shall be complied with within a time limited in the order.
(3) An order made by a referee that requires the payment of money may be made to take effect instanter or so as to take effect upon default being made in complying with some other order made by the referee.

I do not consider that this gives a referee power to make an order for costs, for example, since such a power is not inherent and must be specifically given by statute, in terms pertaining particularly to costs. However, I am of the view that this enables a party who has made legitimate disbursements to be repaid, for example, if a body corporate had had to repair a fence damaged by a respondent, a referee might order that the respondent pay for the damaged fence by recompensing the body corporate.

In this matter I consider that Sanctuary Cove took more than adequate steps to advise Mr Massey of its concerns and gave him more than adequate time to redress the breach. At a committee meeting on 25th February 2008 the committee was concerned about a potential hazard and decided to arrange for barriers to be installed on the Secondary Thoroughfare. Warning barriers and lights were put up on 28th February 2008. I consider that this was a sensible precaution, rendered necessary by the refusal of Mr Massey to answer his mail and/or to cause the vehicle to be put in a safe and lawful position.

The necessity of taking some kind of safety action might have been very much more than the $350 now sought by Sanctuary Cove, and in the circumstances was a reasonable expense on the part of the principal body corporate which should be recompensed by Mr Massey. The cost to the body corporate (and/or Mr Massey) of a successful personal injury claim might have proved very expensive indeed.

I feel it pointless to make an order that any proprietor abides or continues to abide by the Residential Zone Activities By-laws. The by-laws bind all proprietors, occupiers of lots, the members of the principal body corporate, and the principal body corporate to the same extent as if those by-laws had been signed and sealed by each of them as if they contained mutual covenants to observe and perform all the provisions of those by-laws. (Section 96A Sanctuary Cove Resort Act 1985)

I am able however to make an order that Mr Massey refrains from bringing the caravan/mobile site office onto his lot, or permitting it on his lot, unless it can be parked in a manner which complies with the by-laws.

Further, I order that Mr Massey pays to Sanctuary Cove the sum of $350 within 14 days of the date of this order.

I note finally, that nothing has been shown to me in respect of the Residential Zone Activities By-laws or the Secondary Thoroughfares By-Laws (perhaps with some exception as explained later) that demonstrates that a proprietor or occupier must not park on a nature strip or in the road, both being part of the Sanctuary Cove land classified as Secondary Thoroughfare. Lot 1 abuts land shown as “common property” and “secondary thoroughfare” on the Group Titles Plan sheet no. 2, and for the purpose of enforcement of by-laws, the Araucaria General By-laws state that “common property” where appearing in the Araucaria By-laws, shall include the Secondary Thoroughfare within the Araucaria residential zone.

“5. Obstruction
An Occupier must not obstruct the lawful use of the Common Property by any person.”

Clause 6 concerns damage to lawns and gardens on common property by an Occupier.

Either of these by-laws may be relevant to the case where a caravan is parked on a nature strip.

An “Occupier” is not defined in the Araucaria by-laws, nor in the Residential Zone Activities By-Laws, nor in the Sanctuary Cove Resort Act 1985. “Occupier” is defined in BUGTA at section 7 in relation to a lot as a “person in lawful occupation of that lot.” “Proprietor” is separately defined. The Residential Zone Activities By-Laws make reference to the definitions used in “the Act” presumably the Sanctuary Cove Resort Act 1985 which governs the administration of Sanctuary Cove.

I have not been shown the Primary Thoroughfare By-laws which may be applicable or make reference to the Secondary Thoroughfare By-Laws. Nor have I combed the 1962 Traffic Regulations, which are still in existence though greatly amended, and which make up the bulk of the Secondary Thoroughfare By-Laws.

I have not had to deal with this particular matter since the application was made when the caravan was parked on a lot in a way which clearly breached both the Araucaria and the Residential Zone Activities By-laws. However, when the caravan was parked on the nature strip, and outside Lot 1, it is not apparent from the by-laws quoted in the letters of 15th January 2008 and 31st January 2008 to Mr Massey, that those particular by-laws would have been breached by such parking.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Araucaria [2008] QBCCMCmr 249 (22 July 2008)