Gainsborough Place [2008] QBCCMCmr 383 (21 October 2008)

Number of Scheme:	28452
Name of Scheme:	Gainsborough Place
Address of Scheme:	51 Gainsborough Street MOOROOKA QLD 4012

TAKE NOTICE that pursuant to an application made under the abovementioned Act by David Gaudin, the owner of Lot 3

I hereby order that the application for an order by David Gaudin, the owner of Lot 3 against Paul Mengle, the occupier of Lot 2 seeking an outcome to stop parking on common property and to stop trespassing onto Lot 3, is dismissed.

The scheme
“Gainsborough Place” community titles scheme 28452 is comprised of 4 lots and 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 is by David Gaudin, the owner of Lot 3 (Applicant) against Paul Mengle, the occupier of Lot 2 (Respondent) seeking an outcome to stop parking on common property and to stop trespassing onto Lot 3. The Applicant has named the occupier of Lot 4 (name unknown) as an affected person.

The Applicant states that as visitor parking is constantly blocked, bona fide visitors park in the driveway blocking access to the garages. The Applicant submits this has resulted in threats, abuse, physical assault and damage to property. The Applicant included a copy of a Notice to Body Corporate of a Contravention of a Body Corporate By-Law dated 4 June 2008 addressed to AD Body Corporate (Body Corporate Manager) naming the Respondent stating that he continually parks in the visitor parking area and across the garage entrance. The Applicant also included a copy of a letter he wrote to the Body Corporate Manager dated 27 February 2008 requesting that the owner/occupier of Lot 4 be notified of the by-laws regarding parking on common property as a car/s have been parked in the driveway for some weeks.

Submissions to the Commissioner
The Commissioner has provided a copy of the application to the Respondent, the Affected Person and to the Body Corporate Manager for distribution to the owner of each lot (excluding the Applicant), with an invitation to respond to the matters raised in the application (s 243, Act).

The Respondent submits the Applicant parks in visitor’s car spaces and blocks the entrance to garages by parking across the driveway. He states he is continually harassed by the Applicant and listed a number of complaints about the actions of the Applicant. The Respondent says that he is moving out of the Lot and pleads for help with regard to the Applicant. The owner of Lot 2 suggested that I talk to the Body Corporate Manager and the real estate agent who is managing Lots 1, 2 and 4 before deciding the application. The owner of Lot 4 stated that the Applicant has caused ongoing problems to other occupiers, can be aggressive, verbally abusive and threatening. The owner states he consistently parks his work vehicle outside the front door of Lot 4 and across the garage. The owner also says he keeps a dog.

In his reply to the Respondent’s submissions, the Applicant repeated statements about an alleged assault. With respect to the owner of Lot 4’s submissions, he referred to an issue relating to her boyfriend and repeated his claims about her parking on common property. The Applicant provided 5 photographs of vehicles. Two photographs show a white Subaru and a black Barina (the back of one photograph is noted “visitor’s car on right of drway”), two show the same Subaru and a white Ford (the back of one photograph is noted “white Ford Falcon belongs to P.Mengle”), and a fifth photograph is partially of the Barina and the Ford (the photograph is noted “P Mengle blocks any visitors car and restricts access to all four garages”).

Referral to adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication. The Respondent submitted that he was moving out of Lot 2. On 15 October 2008, he confirmed that he still resided in Lot 2. The Respondent also made a late uninvited submission. This submission has not been considered in the determination of this dispute. For the purposes of determining this dispute, I am satisfied the Respondent occupies a lot included in the scheme.

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 community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (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).

Reply to submissions
A reply to submissions must only relate to issues raised by the submissions (s 244(3), Act). Given the submissions made, the photographs included in the Applicant’s reply are new material and contrary to section 244(3). The Respondent, the Affected Person and the other owners are entitled to be given the opportunity to comment on the photographs. Even though I am satisfied 2 of the photographs identify a vehicle carrying the name of the business mentioned in the Respondent’s submissions, I have not relied on the photographs to an extent to warrant delaying the determination of this dispute to allow further submissions to be made.

Scheme by-laws
The by-laws for the scheme are stated in the community management statement (CMS) recorded by the registrar of titles (s 66, Act). The CMS is binding on the body corporate, each lot owner and each person who is otherwise an occupier of a lot in the scheme (s 59, Act).

The CMS for the scheme contains 14 by-laws regulating for example: noise, parking, obstruction, damage to common property and keeping animals. By-Law 2 relates to vehicles and states that the occupier of a lot must not, without the approval of the Body Corporate, park a vehicle on common property or allow an invitee to park a vehicle on the common property. The By-Law contains an exception for a designated visitor car space which, the By-Law states must remain available at all times for the sole use of visitors vehicles.

Enforcement of a by-law
A function of the Body Corporate is to enforce the CMS, including the by-laws (s 94(1)(b), Act). In doing so, the Body Corporate must act reasonably (s 94(2), Act).

Section 182 of the Act provides that if a body corporate reasonably believes that an owner or an occupier is contravening a by-law and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person to remedy the contravention. Section 183 provides that if a body corporate reasonably believes that an owner or an occupier has contravened a by-law and the circumstances make it likely that the contravention will be repeated, the body corporate may give a future contravention notice to the person not to repeat the contravention. In both cases, the notice must state that if the person does not comply, the body corporate may start proceedings in the Magistrates Court or make a dispute resolution application (s 182(4)(e) and s 183(4)(e), Act). Section 185 deals with when an owner or occupier is concerned that another owner or occupier is contravening a by-law. The concerned person must (unless special circumstances exist), in the approved form, ask the body corporate to give the accused person a contravention notice. If the body corporate does not give the notice, the person may then proceed to making a dispute resolution application.

The Applicant has shown that he has given the notice in the approved form to the Body Corporate Manager. It has not been submitted that the Body Corporate has given a contravention notice to the Respondent. In this circumstance, the Applicant may make the dispute resolution application.

Decision
By-Law 2 regulates parking on common property. Common property is that part of scheme land not included in a lot (s 10, Act). The survey plan for the scheme (SP 126667) identifies common property land surrounding the two buildings. By-Law 12 allocates exclusive use of parts of common property to each lot. It would appear unallocated common property land between the two buildings is generally the area where a vehicles/s is being parked in contravention of By-Law 2.

The Applicant argues the Respondent is parking a vehicle on common property. The Respondent has not disputed this claim. Nor has the Respondent demonstrated that he has Body Corporate approval under By-Law 2 to park on common property. The Respondent cannot park a vehicle on common property without Body Corporate approval. Continued or repeated parking on common property in contravention of the By-Law is a basis for making an order of the nature being sought.

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute (s 276(1), Act). I am concerned about the allegations being made in the application, not only about parking on common property, but about a variety of other issues which may or may not be related to parking in contravention of By-Law 2. While the related issues cannot be resolved in the determination of this dispute, they are relevant. The Applicant is concerned not only about parking, but about a number of other incidents involving the Respondent and the owner/occupier of Lot 4. The Respondent and the owner of Lot 4 are both concerned about similar issues they say are started by the Applicant. To a large extent, these claims are not being denied by the Applicant. In this circumstance, I do not consider an order in the terms sought will necessarily resolve the issues. For these reasons, I do not intend to make an order in the terms sought even though it is apparent the Respondent has parked on common property in contravention of the By-Law.

There is no evidence the Body Corporate (the owners) has or is taking steps under the legislation to manage the various issues being complained about by the Applicant, the Respondent and the owner of Lot 4. An attempt should be made to resolve these issues internally through the committee or the Body Corporate. It is important the Body Corporate seeks to deal with the issues in a reasonable way given that more than one occupier seems to be parking on common property in contravention of By-Law 2. There may be reasons for not parking a vehicle in a garage. However, an occupier can only park on common property with Body Corporate approval. It should be noted that an occupier cannot park or be permitted by the Body Corporate to park a vehicle in a visitors parking area. Until such time as an occupier obtains proper Body Corporate approval, all occupiers must cease parking a vehicle on common property.

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—

(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 Respondent and every owner involved in this dispute should consider the comments I have made. If common property parking continues in contravention of By-Law 2, I would expect the Body Corporate to enforce the By-Law. It normally is not a function of a body corporate manager to enforce by-laws. The manager may do administrative tasks such as giving a notice to a person after the Body Corporate has decided that a notice should be given. The decision to give the notice must be made by the Body Corporate, either in general meeting or through the committee.

It should be noted that if a dispute resolution application is made and an order is made against a particular occupier, that order can be enforced in the Magistrates Court by for example, the applicant for the application or the Body Corporate (s 286 and s 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).

Owners should note that information is available from the information service provided by the Commissioner. The information service can be contacted on 1800 060 119 during business hours. The internet address is www.justice.qld.gov.au/bccm.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Gainsborough Place [2008] QBCCMCmr 383 (21 October 2008)