La Sabbia [2008] QBCCMCmr 319 (10 September 2008)

Last Updated: 13 October 2008

REFERENCE: 0306-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24687
Name of Scheme:	La Sabbia
Address of Scheme:	76 Old Burleigh Road SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for La Sabbia community titles scheme 24687.

I hereby order that when occupying Lot 39 included in La Sabbia community titles scheme 24687, Sam Byrnes must comply with section 167 of the Body Corporate and Community Management Act 1997 and must not use, or permit the use of, the Lot or the common property for the scheme in a way that causes a nuisance or hazard; or interferes unreasonably with the use or enjoyment of another lot included in the scheme; or interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0306-2008

“La Sabbia” CTS 24687

The scheme
“La Sabbia” community titles scheme 24687 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application dated 3 April 2008 is by the Body Corporate against Sam Byrnes as an occupier of Lot 39 (Respondent). Lot 39—known as Unit 103—is owned by Allan and Michelle Byrnes.

The application was made as a consequence of a resolution of the committee voting outside a committee meeting dated 26 March 2008 “That as the Conciliation Agreement between the Body Corporate and Dr & Mrs Byrnes and their son has been breached, the Body Corporate Committee take action by seeking an Order of an Adjudicator against the owner of lot 39 (Unit 103) Dr & Mrs Byrnes and their son”. A committee can vote outside a committee meeting (s 54, Standard Module). A committee decision to make an application under the dispute resolution provisions of the Act is a decision of the body corporate (s 100, Act and s 42, Standard Module).

The Body Corporate originally named the owner of Lot 39 as respondent seeking an outcome that the owner ensures Sam Byrnes complies with noise and nuisance by-laws. The original application was subsequently amended. I am satisfied the above committee resolution authorises the outcome now being sought that the Respondent be ordered to comply with section 167 of the Act. Section 167 states:

Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

The Body Corporate states:

• The Respondent resides in Lot 39 from time to time.
• An incident (Incident 1) occurred in 2004 when the Respondent was seen speeding in the garage area. The Body Corporate provided a copy of a Notice of Continuing Contravention of a Body Corporate By-Law dated 22 March 2004 addressed to the owner of Lot 39 citing By-Law 6 Behaviour of Invitees and stating “That a Blue Utility is constantly speeding in the garage”. The Body Corporate also provided a copy of correspondence between it and Mrs Byrnes about the claimed speeding. The Body Corporate provided a letter from Mrs Byrnes dated 1 June 2004 saying that speeding was not discussed with her son and questioned why the notice referred to ‘constant speeding’.
• Written complaints were received after a party was conducted in Lot 39 in October 2005. The Body Corporate says that at the same time, it locked the Respondent from the gymnasium and spa facilities because of the behaviour of him and his guests drinking in that area. The Body Corporate provided letters of complaint from the persons residing in Units 102 and 104. Beryl Dalton of Unit 102 stated in her letter to the committee dated 24 October 2005 that for sometime noise has been coming from the Unit including the front door being allowed to let bang continually during the day and into the night, cans and bottles being tossed down the rubbish chute and loud music. The letter to the committee from Mr Bennetts of Unit 104 dated 25 October 2005 stated that on various occasions he has had cause to complain about the unruly behaviour and excessive noise from the occupiers of Unit 103, that the problem has become more noticeable as there is excessive noise late at night and early in the morning from people coming to and leaving the Unit, including the slamming of the door to the foyer, the smell of cigarette smoke in the foyer, and the depositing of rubbish in the refuse room. The Body Corporate also provided a copy of a letter from Mrs Byrnes dated 2 November 2005, who after being advised of these concerns stated none of the young people smoke, expressed concern about the noise from Unit 104, stated Beryl Dalton is constantly complaining about many things, and said that the occupiers of Unit 103 are being abused, followed and watched. (Incident 2).
• A third incident (Incident 3) occurred in January 2006. The Body Corporate provided a copy of an email dated 22 January 2006 from Rod McCauley (committee member) about noise from Unit 103 at about 10.30pm and again at 4.20 am stating Mrs Byrnes was informed of the disturbances by telephone the next day.
• A fourth incident (Incident 4) occurred in October 2007 and complaints were received. The Body Corporate provided a letter dated 30 October 2007 from Beryl and Ray Dalton complaining about the persons in Unit 103 causing noise by allowing the front door to bang continually, loud voices in the foyer, bottles being placed down the chute, the intercom ringing at all hours and their morning paper being taken.
• It sought conciliation and a conciliation agreement was made. The Body Corporate provided a copy of a letter dated 5 December 2007 addressed to Dr A & Mrs M Byrne enclosing a Notice of Continuing Contravention of a Body Corporate By-Law dated 11 December 2007. The Notice states that the Body Corporate has reasonable grounds to believe that you are contravening By-Law 1 Noise and By-Law 33 Guests and “that you are doing so in the following manner-Your son and his visitors/guests, over the Indy week” created excessive noise, took other owners newspapers and generally annoyed other residents. (Incident 5).
• A security DVD from 23 March 2008 shows footage the committee believes to be of the Respondent riding a child’s scooter into the indoor pool which had the potential to cause damage to the pool, was a dangerous practice and did cause damage to the foyer floor. The Body Corporate says the footage also shows the Respondent dropping a young lady onto the concrete floor. The Body Corporate provided a letter dated 1 April 2008 addressed to Strata-Jem Pty Ltd (Body Corporate Manager) from Adrian and Marilyn Smith (Manager) which outlined a brief description of events that occurred on 23 March 2008 after checking the CCTV. They say the “people have been identified as the son and guests of Apt 103” and the CCTV showing a child’s scooter being ridden through the foyer, swimming outside designated times, and a person being carried and dropped. The Body Corporate provided a quote from Underfoot Solutions dated 3 April 2008 for $1200.00 to “Repolish and seal foyer floor to remove scratches and tyre marks from a scooter”. The Body Corporate also provided a CD of the CCTV footage. (Incident 6).
  

Submissions to the Commissioner
On 30 April 2008, the Commissioner provided a copy of the application to the Respondent and to the Body Corporate Manager for distribution to the owner of each lot, with an invitation to respond to the matters raised in the application (s 243, Act). Submissions were made by 37 lot owners (including four late submissions).

33 submissions gave general support to the application for reasons including:

• The reported actions of the Respondent and his guests are abhorrent, are not in keeping with the prestigious complex and the behaviour of other residents.
• It is unacceptable that these activities can put other owners at risk of having public liability claims made against them or the Body Corporate.
• The owner has had more than a reasonable number of approaches from the committee and the resident manager to correct the unacceptable behaviour of the Respondent.
• Owners cannot tolerate this offensive and inappropriate behaviour.
• The Body Corporate has always sought to deal with matters sensibly and this action is taken to ensure all owners are able to enjoy the facilities safely and without hindrance.

4 submissions supported the specific claims being made by the Body Corporate:

• The owner of Lot 6 submitted they have been woken on many occasions in the early hours of the morning by the resident and guests of Unit 103. They say their behaviour includes very foul language and general drunkenness.
• The owner of Lot 25 stated she did notice the condition of the main foyer on the date mentioned, that someone had created a terrible mess in the foyer and that the spa room was covered in water.
• Beryl and Ray Dalton stated that from time to time Lot 39 is occupied by young people who behave in such a way that they plan to sell. They say the damage caused to the polished marble floor by the scooter was seen and that they have complained about the continual banging of the front door of the Unit, loud voices, dropping bottles down the refuse chute, their intercom being pressed at all hours and their paper being taken.
• The owner of Lot 47 stated that on a number of occasions over the past few years, he has experienced excessive noise and unruly behaviour from Lot 39 which is 2 floors below Lot 47. He says the excessive noise, yahooing and loud swearing at all hours is too much.
  

Mrs Byrnes submitted that she had not seen the video footage of the alleged incident and requested that she be provided this footage as it is difficult to make a submission without the footage. Mrs Byrnes stated the scooter would not cause damage to any property and that no injury or harm was caused to the person dropped onto the floor. She says the Body Corporate continues to raise old issues which have already been addressed and that all owners on floor ten have been spoken to and they have no complaints. Mrs Byrnes says that the manager exaggerates issues and harasses family members.

The Body Corporate Manager made a written reply to submissions on behalf of the committee stating that the scooter did cause damage and that costs were incurred to repair the damage; the scooter should not have been in the pool which was being used after hours in contravention of the by-laws; the committee have not received any complaints about the manager from any other resident; and that both neighbouring owners have made complaints to the Body Corporate.

Referral to adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Determination

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act).

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act and given the request from Mrs Byrnes in her submissions, on 28 July 2008 I provided her with a compact disc of the footage supplied by the Body Corporate of the claimed 23 March 2008 incident and I invited her to make submissions to me with respect to this footage. Mrs Byrnes made submissions stating the footage has been reviewed and that there is no liability associated with the Body Corporate and that this was not a malicious or deliberate act but an accident.

I invited the Body Corporate to respond to Mrs Byrnes’ submissions. The Body Corporate Manager stated on behalf of the committee that Mrs Byrnes is incorrect and the Body Corporate has no knowledge whether the person was hurt or not. The Body Corporate submits Mrs Byrnes did not respond to the matters under dispute as she has not explained the use of the swimming pool after hours and the scooter being ridden in the pool and the tyre marks on the floor. The Body Corporate state all these actions are in contravention of the by-laws.

Decision
The Respondent
The Respondent did not respond to the commissioner’s invitation to make submissions about the application. Mrs Byrnes made submissions; it would seem on his behalf. In making the application, the Body Corporate states the Respondent is an occupier of Lot 39. It is apparent from the submissions that the Respondent occupies Lot 39 intermittently. In the absence of arguments suggesting otherwise, for the purpose of determining this application I am satisfied firstly, that at the times of the claimed incidents the Respondent was an occupier of Lot 39 as defined by the Act and secondly, that it is reasonable to expect the Respondent will continue to occupy the Lot from time to time.

Incident 1
This incident is claimed to have occurred in 2004. The Body Corporate sought to deal with this issue by giving a continuing by-law contravention notice to the owner of Lot 39.

The by-laws stated in the recorded community management statement (CMS) are 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 (ss 52, 59 and 168, Act). It is a function of a body corporate to enforce the CMS, including the by-laws (s 94(1)(b), Act). A body corporate may give a continuing contravention of a by-law notice if it reasonably believes an owner or occupier is contravening a by-law and the circumstances make it likely that the contravention will continue (s 182, Act). The notice must state that if the contravention is not remedied, the body corporate may start proceedings in the Magistrates Court or make a dispute resolution application (s 182(4)(e), Act).

It would seem the Notice dated 22 March 2004 was disputed by Mrs Byrnes and that the Body Corporate did not pursue the claimed continuing contravention. I am not satisfied this claimed incident demonstrates a breach of section 167.

Incidents 2 to 5
These incidents relate to claimed behaviour of the Respondent and his guests in Lot 39, on the common property in the vicinity of Lot 39 and on other areas of common property.

Lot 39 is on Level L of Building Units Plan 106875 along with Lots 37, 38 and 40. In 2005, the owners of Lots 38 and 40 made written complaints to the Body Corporate about this behaviour. The owner of Lot 38 made a subsequent complaint in 2007 and restated concerns in submissions to the commissioner. The complaints have all been in relation to similar issues – the banging of the front door of Lot 39, loud noises from the Lot and from the adjacent common property foyer and dropping bottles in the common property refuse chute. The owners of Lots 6 and 47 have also made submissions outlining their concerns with the behaviour of the Respondent and his guests. The Body Corporate provided an email from Mr McCauley about a noise issue in 2006. In supporting the application, Mr McCauley submitted he has been involved in dealing with situations arising from the actions of the Respondent. A common concern is that behaviour late at night and in the early hours of the morning interferes with the use or enjoyment of another lot included in the scheme.

Section 167(b) provides that an occupier must not “interfere unreasonably” with the use or enjoyment of another lot. It would seem the legislation contemplates that some interference with another person’s use or enjoyment of another lot will occur which will not necessarily contravene the Act. The question is whether the interference is unreasonable.

It might be argued that each Incident is relatively isolated and that there is not a pattern of behaviour sufficient to justify unreasonable interference. In the circumstances described, I am satisfied the Incidents refer to behaviour which would cause unreasonable interference, particularly when the behaviour occurs late at night and in the early hours of the morning.

Incident 6
I do not think there is any dispute about the contents of the footage. However, I am not satisfied this footage demonstrates a breach of section 167 of the Act. The Body Corporate and other owners may be concerned about some of the incidents shown on the footage, but nothing shown indicates a breach of the nuisance provision.

I note By-Law 42 regulates the use of recreational facilities. With respect to the spa and indoor pool areas, it provides that invitees and guests may not use these areas unless the owner or occupier of a lot accompanies them and no use of the areas shall be made between the hours of 9pm and 7am. The Body Corporate could have considered enforcing this By-Law against the Respondent applying either section 182 or 183 of the Act. But its capacity to take this action does not mean it is a ground for a section 167 complaint.

Conclusion
The onus is on the person making the allegation of nuisance to demonstrate that a nuisance or hazard has been caused or that there has been unreasonable interference. The Body Corporate has outlined six incidents which occurred since 2004. While I am not satisfied the first and sixth incidents show a breach of section 167, the Body Corporate has demonstrated that other incidents have occurred which have caused unreasonable interference with the use or enjoyment of another lot included in the scheme. It is clear that many owners generally support the Body Corporate and the manager in this matter.

The Body Corporate has shown it has sought to deal with the complaints internally before seeking to resolve the issues under the legislative dispute resolution provisions. The Body Corporate has also shown that the owner of Lot 39 has been aware of the concerns of owners. After seemingly reaching an agreement through conciliation, the Body Corporate says the 23 March 2008 incident left it with no other option but to make this application. Given the length of time which has lapsed since Incident 1, it is evident the Body Corporate has not made this application lightly.

The Respondent has not disputed the application. Mrs Byrnes has made submissions but has not claimed incidents such as those described as Incidents 2 to 5 did not occur or that noise of the nature mentioned in the application was not created. Nor did she make submissions that the Respondent was not occupying the Lot at the times claimed by the Body Corporate. Further, there have not been submissions from other owners or occupiers disputing any of the claims being made. Mrs Byrnes has made complaints about the actions of other owners, but this does not excuse the behaviour of her son and his guests. She submitted the Body Corporate continues to raise old issues which have already been addressed. The Body Corporate has shown that similar long standing issues continue or are repeated at times when the Respondent has occupied the Lot. Mrs Byrnes also said, without substantiation, that owners on floor ten do not have complaints. No submissions have been made suggesting any owners or occupiers support the Respondent. If floor ten is Level L, it is clear that the owners of 2 lots on this Level have had concerns and that the owner of Lot 38 is still concerned. Mrs Byrnes also expressed concern about the manager which has not been confirmed from submissions made in response to the commissioner’s invitation.

I am satisfied incidents detailed in the grounds of the application and the supporting submissions demonstrate the Respondent and his invitees have contravened section 167 of the Act. Given the material presented, I am satisfied it is likely the Respondent will occupy the Lot in the future. While occupying Lot 39, the Respondent has an obligation, as does any occupier, to comply with section 167. For these reasons, I consider it is just and equitable in the circumstances to make an order in the terms sought by the Body Corporate. If the Respondent does not comply with the order, it can be enforced against him in the Magistrates Court (ss 286 and 287, Act). Under section 288 of the Act a breach of an order is an offence attracting a fine of up to 400 penalty points (currently $30,000).