White Lanterns [2009] QBCCMCmr 36 (5 February 2009)

Last Updated: 9 March 2009

REFERENCE: 0861-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21388
Name of Scheme:	White Lanterns
Address of Scheme:	147 Kingston Road WOODRIDGE QLD 4114

I hereby declare that at the date of this order, Mr. Ricardo Romero is not a member of the body corporate committee and unless he is appointed to an executive or ordinary member position on the committee, is not entitled to represent to anyone that he is in a position of authority on the body corporate I hereby order that Mr. Ricardo Romero is prohibited from: - hindering or interfering with any contractor engaged by the body corporate; - purporting to engage contractors on behalf of the body corporate; - causing a nuisance on common property; and - interfering 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 0861-2008

“White Lanterns” CTS 21388

The Scheme

White Lanterns Community Titles Scheme (White Lanterns) is a 24 lot scheme regulated by the Body Corporate and Community Management Act 2008 (Act) and the Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

Application

On 10 October 2008, the body corporate made an application to this office seeking urgent interim orders against Ricardo Romero, the owner of lot 25 (respondent) as well as certain final outcomes.

The final outcomes sought are:

That Ricardo Romero be prohibited from:

(a) speaking to, blocking or interfering in any way any contractor engaged by the body corporate and further, be prohibited from purporting to engage contractors on behalf of the body corporate;
(b) causing a nuisance on common property;
(c) interfering unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property; and
(d) until and unless he is reappointed to any executive or ordinary member position on the committee, representing to anyone that he has any position of authority on the body corporate.

The applicant previously sought the following urgent interim orders:

1. That Ricardo Romero be prohibited from:

(a) speaking to, blocking or interfering in any way with Glen Williams and any employee or contractor of Brush Huts Oz Style;
(b) speaking to, blocking or interfering in any way any contractor engaged by the body corporate and further, be prohibited from purporting to engage contractors on behalf of the body corporate;
(c) causing a nuisance on common property;
(d) interfering unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property; and
(e) until and unless he is reappointed to any executive or ordinary member position on the committee, representing to anyone that he has any position of authority on the body corporate.

2. That the body corporate be entitled to act on the committee resolution of 10 October 2008 notwithstanding that the notice of opposition period (section 56 Standard Module) has not expired on the grounds that the matter is an emergency.

It is claimed that the respondent has a history of interfering with contractors who have been lawfully engaged by the body corporate to maintain the common property, including the gardening contractor and pool contractor. Following a confrontation between the respondent and a fencing contractor lawfully engaged by the body corporate, the applicant sought orders to prevent the respondent from interfering with the tradesman so that the works can be completed without further delay and expense.It was further submitted that an urgent interim order was required for the purpose of providing confirmation to members of the Queensland Police Service, that Mr. Romero was not the current Chairperson.

Given the urgency of the situation, on 10 October 2008 I made the following interim orders:

1. That Mr. Ricardo Romero is prohibited from:

1. speaking to, blocking or interfering in any way with Glen Williams and any employee or contractor of Brush Huts Oz Style;
2. speaking to, blocking or interfering in any way any contractor engaged by the body corporate and further, be prohibited from purporting to engage contractors on behalf of the body corporate;

100. causing a nuisance on common property;

4. interfering unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property; and
5. until and unless he is reappointed to any executive or ordinary member position on the committee, representing to anyone that he has any position of authority on the body corporate.
   

2. That the body corporate is entitled to act on the committee resolution of 10 October 2008 notwithstanding that the notice of opposition period (section 56 Standard Module) has not expired on the grounds that the matter is an emergency.
   

Background

The applicant states that final orders are required to enable contractors to undertake work which has been legally authorised by the body corporate. It is claimed that the respondent has a history of interfering with contractors, including a fencing contractor, gardening contractor and pool contractor.

While interim orders were sought specifically to enable the a fencing contractor to recommence work authorised by unanimous resolution of the body corporate, final outcomes are sought in more general terms as it is alleged that the respondent has a history of interfering with contractors, including a fencing contractor, gardening contractor and pool contractor who have been lawfully engaged by the body corporate

The applicant also seeks an order that the respondent is to desist from representing to others that he is a member of the committee unless he is re-elected to the committee. Although the respondent was previously the chairperson, a new committee was chosen at the last AGM on 20 May 2008 and the new Chairperson/ Secretary/ Treasurer is Mia Turner, with Messrs Hennessy and Braun as ordinary committee members. It is claimed that such an order is necessary because the respondent has represented to various persons, including members of the Queensland Police Service, that he is the current Chairperson.

In support of the above claims, solicitors for the applicant have submitted copies of the following documents:

• minutes of the AGM dated 20 May 2008 which include the results of the committee election;
• Arrears list showing that the respondent’s body corporate contributions have been in arrears since June 2007;
• Minutes of EGM held on 20 August showing unanimous support (5 votes to 0) for motion to have left hand corner side fence replaced by Brush Huts Oz Style in conjunction with body corporate for Palmwood Court so that cost to White Lanterns is $5,780;
• Complaint by “Steven Clark’s Garden Management”;
• Complaint by the pool maintenance contractor;
• Complaint by owner of “Brush Huts Oz Style” alleging harassment by the respondent by telephone and on site causing him to lose one day’s work;
  

In response to an invitation issued pursuant to section 243 of the Act, the Respondent’s solicitors made the following submissions:

• The relevant committee meeting was held on 10 October 2008 in the bistro area at the “Logan Diggers Club” which was an inappropriate venue owing to poor lighting and excessive noise;
• A Mr. Hardy attended as body corporate manager although he was handed a letter terminating his appointment;
• Mr. Romero (the respondent )objected to the conduct of the meeting in the bistro and left the meeting
• The respondent has no knowledge of the committee resolution dated 10 October but notes that the copy of the minute produced by the applicant has not been signed or dated by the chairperson;
• The respondent is concerned about the contract entered into with the fencing contractor as he previously provided Mr Hardy with a quotation for replacement of the timber fence with a colour bond steel fence at a total cost of $8,496 (inc GST). However that quotation was not provided at the EGM held on 20 August 2008;
• The respondent denies that he ever represented to anyone, including police officers, that he was a member of the committee after his term as a committee member had expired. Rather, he told police officers that he was a member of the body corporate;
• The respondent has refused to pay his levies pending removal of State Wide Body Corporate Services as body corporate manager;
• He denies that he has harassed Mr Williams of Brush Huts Ozstyle or that he has harassed the body corporate’s gardening contractor.
  

The body corporate’s solicitors replied to the above submissions in the following terms:

• Previous meeting have been held at the Logan Diggers Club and no complaints have been received from anyone other than the respondent;
• While the respondent purported to terminate the services of Mr. Hardy as body corporate manager he had no authority to do so;
• An emergency committee meeting was held pursuant to section 54 of the Standard Module Regulation to consider making a dispute resolution application and minutes of the meeting were distributed to all lot owners including the respondent;
• The quotation dated 3 August 2008 was received by the committee but there was no request to include this on the agenda for the next committee meeting and in any case, this quote was rejected because it did not contain the cost of the retaining wall required under part of the fence;
• Two employees of the pool service contractor have complained that they were harassed by the respondent and the contractor was contacted by the respondent who claimed to be the chairman;
• on 20 May 2008, State Wide body corporate services was reappointed as body corporate manager for a period of 3 years;
• the applicant has received an emailed complaint from Glen Williams of Brush Huts Oz Style, stating that he has been harassed by the respondent;
• the respondents’ submissions are at odds with the written complaints from three service contractors complaining of harassment;
• certain complaints are not signed because the applicant received the complaints by way of email communication.
  

Jurisdiction

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

(c) a claimed or anticipated contractual matter about-

(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

In support of this application I have been provided with minutes of the AGM held on 20 May 2008 which includes the results of the committee election showing that Mr. Romero is no longer a member of the body corporate committee.

I have also been provided with copies of the following:

• Minutes of EGM held on 20 August showing unanimous support (5 votes to 0) for motion to have left hand corner side fence replaced by Brush Huts Oz Style;
• letter of complaint to the body corporate by Mr Williams, owner of “Brush Huts Oz Style” alleging harassment by the respondent causing him to lose one day’s work;
• complaint by Mr. Clark of Steven Clark Garden Management”;
• complaint by pool maintenance contractor.
  

While the respondent denies that he harassed or interfered with the activities of contractors, his denial is at odds with the written complaints from three service contractors. On the balance of probabilities, I believe that the contractors do feel harassed and that they find it difficult to work in a situation where a person seeks to direct them to perform their duties contrary to the instructions of the elected committee.

In any scheme there are bound to be differences of opinion between lot owners as to how the scheme is managed and how works are to be undertaken. and for this reason the Body Corporate and Community Management Act 2008 (Act) and the Standard Module Regulation provide democratic processes for decision-making and approval of significant expenditure.

For the above reasons I propose to make the following orders:

• That at the date of this order, the respondent is not a member of the body corporate committee and unless he is appointed to an executive or ordinary member position on the committee, he is not entitled to represent to anyone that he is in a position of authority on the body corporate
• that Mr. Ricardo Romero is prohibited from:
  • - hindering or interfering in any way with any contractor engaged by the body corporate and
  • - purporting to engage contractors on behalf of the body corporate;
  • - causing a nuisance on common property;
  • - interfering unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.