Bellardoo [2009] QBCCMCmr 327 (31 August 2009)

Last Updated: 28 September 2009

REFERENCE: 0068-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11941
Name of Scheme:	Bellardoo
Address of Scheme:	2 Meta Street MOOLOOLABA QLD 4557

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

Ray Malyon, the Owner(s) of lot 17

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0068-2009

“Bellardoo” CTS 11941

Application

Bellardoo Community Titles Scheme (Bellardoo) is a 30 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This application is by Raymond Malyon, owner of lot 17 (applicant) seeking orders against the body corporate for Bellardoo (respondent).

The application seeks numerous outcomes and includes hundreds of pages of information. A submission from the body corporate was to the effect that it is impossible to determine the actual issues in dispute in these proceedings and the application therefore does not fall within the dispute resolution provisions of the Act.

Decision

I conducted a teleconference with the applicant and the body corporate’s representative. At this teleconference I indicated a provisional view that the application should be dismissed under section 270(1)(c) on the basis it was misconceived and without substance. In particular, I formed the provisional view that the application consisted of a list of the applicant’s wishes wherever the applicant’s views differ from those of the committee, the caretaker, or those of owners in general meeting. The application did not satisfy me that there is any good legal reason for intervening in the management of the body corporate simply because of a difference of opinion as reflected in the application.

I gave the applicant the opportunity to briefly articulate the main point of the application. Most of the applicant’s arguments related to alleged failings of the caretaker with the main point being the failure by the body corporate to issue a remedial action notice that the applicant had drafted. A fundamental problem with the remedial action notice is that the applicant appears to have attempted to include every possible grievance which has resulted in a proposed notice that is extremely difficult to understand. In fact, I consider the proposed notice to be so difficult to understand and unlikely to achieve quantifiable results that it would be unreasonable for the body corporate to have agreed to issue it to the caretaker. In any event, it appears the caretaker in question is no longer associated with the scheme.

The sole point the applicant was able to raise that might have some justification for the grant of an order related to water ingress to his lot. Ironically the applicant did not seek orders to directly rectify this matter but sought orders to the effect that the body corporate not undertake new constructions until maintenance issues were addressed. In any event, the evidence from the applicant and the body corporate was to the effect that some work had been done to rectify the issue of water ingress. The applicant could not provide any evidence of water ingress since this work had been done.

Having reviewed and discussed the submissions I was satisfied that the application should be dismissed on the basis it was frivolous, vexatious, misconceived and without substance (Act, 270(1)(c)). This was particularly due to the lack of substantiating grounds and the application being based on differences of opinion that should properly be resolved by a vote rather than an application. However, it was also based on the excessive number of groundless complaints in a single application and the excessive length of the application.

The body corporate made submissions seeking $2,000 to help compensate it for the costs of responding to an application that was vexatious, misconceived and without substance. I note that in ordering costs of this nature an adjudicator may have regard to previous applications made by the applicant (Act, 270(3)(b)). I have decided that it would not be appropriate to order costs against the applicant in this instance. This is primarily because this is the first application the applicant has made. However, it is also because it appears he had a genuine grievance in relation to some behaviour of the caretaker even though the applicant was unable to separate significant and genuine issues from mere differences of opinion.

I wish to warn the applicant, however, that if he lodges any further application that is dismissed on the basis it is frivolous, vexatious, misconceived or without grounds, it would be quite proper to take into account the fact that the applicant has already had an application dismissed on this basis and that the applicant is aware that costs may be awarded against him for applications of this nature.