Orna Court [2009] QBCCMCmr 44 (9 February 2009)

Last Updated: 9 March 2009

REFERENCE: 1057-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20483
Name of Scheme:	Orna Court
Address of Scheme:	145 Central Street Labrador QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Orna Court community titles scheme 20483.

I hereby order that Lillian Nicholls, occupier of Lot 10 included in Orna Court community titles scheme 20483 must comply with: By-Law 1 (Noise) and not create any noise likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property. By-Law 6 (Behaviour of Invitees) and take all reasonable steps to ensure that her invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1057-2008

“Orna Court” CTS 20483

The scheme
“Orna Court” community titles scheme 20483 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application is dated 8 December 2008. It is made by the Body Corporate against Lillian Nicholls, occupier of Lot 10 seeking an outcome that Ms Nicholls, all occupiers and guests of Lot 10 cease breaking the by-laws.

The Body Corporate states correspondence has been sent to the occupiers of Lot 10 regarding breaches of by-laws, these notices have been ignored, and the disturbance continues to affect other occupiers particularly Mr Karatas of Lot 5. The Body Corporate submits that Mr Karatas has endured the occupiers and their visitors: driving over the lawn at the front of his Lot; throwing balls at the walls of his unit; using offensive language towards him; yelling and screaming; racially abusing; and driving vehicles towards him. The Body Corporate says other occupiers have been affected by the occupiers of Lot 10: parking vehicles in visitor parking spaces and in front of their unit blocking access to other units; playing loud music; blowing the horn of vehicles; hitting the doors of committee members units; and using loud and rude language which can be heard from other lots.

The Body Corporate provided a copy of the following documentation:

1. A letter dated 30 November 2007 from Body Corporate Services (the then Body Corporate Manager) to the occupier of Lot 10 about loud music from the Lot on a regular basis, citing By-Law 1 (Noise) and asking for co-operation in reducing volumes to a reasonable level.
2. A letter dated 9 January 2008 from the then Body Corporate Manager to the occupier of Lot 10 about parking on visitors car parking spaces and stating it is not permitted. The letter refers to starting proceedings in the Commissioner’s office if there are further complaints.
3. A letter dated 31 January 2008 from the then Body Corporate Manager to the occupier of Lot 10 referring to previous correspondence and stating: “... we are once again writing to you concerning multiple complaints of loud music, and parking your vehicle in the visitors car parking area. Complaints have been received on several occasions since December ... They are breaches of the Body Corporate By-Laws and therefore action can be taken to ensure a repeat does not occur ...” The letter enclosed a copy of the by-laws and refers to starting proceedings in the Commissioner’s office if there are further complaints.
4. A letter dated 13 March 2008 from the then Body Corporate Manager to the occupier of Lot 10 stating: “We once again advise that we have been instructed to write to you concerning complaints that loud music emanates from your unit on a regular basis, thereby disturbing the peaceful enjoyment to which adjacent occupants are entitled”. The letter quotes By-Law 1 (Noise) and refers to starting proceedings in the Commissioner’s office.
5. A letter dated 26 May 2008 seemingly signed by persons from Units 1, 5 and 11 saying (amongst other things) the occupiers park a vehicle in a visitors car space and play loud music. It is stated the police attended the Lot on 23 May 2008 regarding the noise.
6. A letter dated 27 May 2008 from the then Body Corporate Manager to the occupier of Lot 10 regarding a breach of by-laws stating: the Body Corporate received reports that between 9pm and 1am on 23 May 2008, the occupiers created noise that interfered with other occupier’s peaceful enjoyment of their lots; and the Body Corporate does not intend the noise disturbance to continue. The Body Corporate enclosed a copy of the by-laws.
7. A Notice of Continuing Contravention of a Body Corporate By-Law dated 6 November 2008 from Gary Austin-Eames (from Strata-Jem Pty Ltd, the Body Corporate Manager) addressed to the occupier/s of Lot 10 stating “the Body Corporate has reasonable grounds to believe you have contravened” By-Laws 1 (Noise), 2 (Vehicles) and 6 (Behaviour of invitees) by: using offensive language and making obscene gestures to other occupiers; playing loud music; visitors blowing the horns of their vehicles; parking vehicles in visitors car parks; deliberately driving towards the chairperson; and driving vehicles over common property lawns.
8. A facsimile from Ms Nicholls to the Body Corporate Manager stating in regards to By-Laws 1, 2 and 6: “I believe that I have contravened those by-laws and therefore apologize for any inconvenience that I have caused to any of the residents ...”
9. An email to the Body Corporate Manager from the owner of Lot 5 dated 24 November 2008 saying the occupiers are still breaching by-laws and that on 13 November 2008 the occupier played loud music and car horns were blown.
10. A resolution of the committee outside a committee meeting dated 4 December 2008 where H Karatas, H Homann, T Zakharov and D Ozturk voted that the Body Corporate make a dispute resolution application with regard to Lot 10 continually breaching by-laws and that they be served with a contravention notice for breaching By-Laws 1 and 6.
    

Submissions to the Commissioner
The Commissioner provided a copy of the application to Ms Nicholls 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).

Ms Nicholls stated she moved into Lot 10 on 5 April 2008. She submitted that: she cannot recall driving on his lawn; we never throw balls at his walls; there have been a couple of times where he and his wife and I have exchanged words; there is no racial abuse; her daughter did not deliberately drive towards him, she was driving around the raised drain; the parking of cars is sorted out and her daughter only visits on weekends; the only time anyone stops in front of Lot 10 is to drop off and pick up, which occupiers of other units also do; there has been loud music a few times, but not day and night; her daughter has blown her horn when leaving; she wasn’t aware of anyone hitting anyone’s door; and she doesn’t think the talking in the backyard was that loud.

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

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute 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).

Investigation
The Body Corporate was created under the Building Units and Group Titles Act 1980 (BUGT Act) on 27 September 1990 when the registrar of titles registered Group Titles Plan 2453 (s 27, BUGT Act). As the Body Corporate did not record a change of by-laws under the BUGT Act, the by-laws stated in schedule 3 of the BUGT Act applied (s 30, BUGT Act).

These by-laws continued to apply when the Act commenced in July 1997 (s 337, Act). As the standard community management statement (CMS) recorded by the registrar has effect, these by-laws still apply (s 339, Act). By-Laws 1, 2 and 6 of schedule 3 of the BUGT Act state:

1 Noise

A proprietor or occupier of a lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

2 Vehicles

Save where a by-law made pursuant to section 30(7) of this Act authorises a proprietor or occupier so to do, the proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

6 Behaviour of invitees

A proprietor or occupier of a lot shall take all reasonable steps to ensure that his or her invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

Decision
The by-laws are part of a scheme’s CMS, which is binding on the body corporate, each member of the body corporate (each owner) and each person who is otherwise the occupier of a lot in the scheme (s 59 and 66, Act). A function of the body corporate is to enforce the CMS, including the by-laws (s 94(1)(b), Act). The body corporate must act reasonably when doing so (s 94(2), Act).

The Act provides a framework for dealing with by-law contraventions.

Section 182 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. The notice must state the by-law the body corporate believes is being contravened and details sufficient to identify the contravention. The person must comply with the notice.

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. The notice must state the by-law the body corporate believes has been contravened and details sufficient to identify the contravention. A future contravention notice has effect for 3 months after it is given or a shorter period mentioned in the notice. The person must comply with the notice.

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)). A Magistrates Court may impose a maximum penalty of 20 penalty units for failure to comply with either notice (s 182(5) and s 183(6), Act). Unless special circumstances exist, a body corporate may make a dispute resolution application only if it has given the owner or occupier a contravention notice (s 184, Act).

Rather than starting proceedings in the Magistrates Court, the Body Corporate has made this dispute resolution application and has named Ms Nicholls as the person against whom an order is sought. The Body Corporate has demonstrated that before making this application it gave the occupier of Lot 10 a continuing by-law contravention notice detailing how the stated by-laws were being contravened.

There are however, some issues with the notice.

Firstly, the Body Corporate gave a continuing contravention notice in circumstances when it would seem a future contravention notice would have been more appropriate. It could be argued that the circumstances are more of a nature which may be repeated rather than continuing. While I have mentioned this irregularity, I consider it to be minor in the circumstances.

Secondly, the notice does not name Ms Nicholls. However, given the facsimiled subsequent response from Ms Nicholls, it is apparent that she has knowledge of the notice.

Thirdly, the by-laws cited in the notice are those stated in schedule 4 of the Act. These by-laws do not apply to this scheme (see Investigation on page 2). I do not consider this issue to be significant in the determination of this dispute given that 6 November 2008 notice details the contraventions, the correct by-laws regulate the same matters as the cited schedule 4 by-laws, and the stated contraventions are regulated by the correct by-laws in a similar way to the schedule 4 by-laws.

Lastly, it could be argued some of the alleged incidents stated in the notice are not regulated by the relevant by-laws (for example, using offensive language, making obscene gestures, driving towards the chairperson and driving over common property). Section 167 of the Act may apply in the circumstances of these incidents. The section 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.
However, other stated incidents in the notice relate to the stated by-laws and Ms Nicholls did acknowledge the contraventions after the notice was given.

Subsequent to the notice being given, Mr Karatas made a complaint to the Body Corporate about an incident that occurred on 13 November 2008. The committee then decided to make this application. As I have indicated, I do not consider the incident to be one of a continuing nature. In my view, the circumstances of the incident suggest a contravention stated in the 6 November 2008 notice has been repeated. Given the time a future contravention notice has effect, the contravention was repeated within three months of the notice being given to the occupier of Lot 10.

These circumstances support making an order against Ms Nicholls. A body corporate should be entitled to proceed under the legislation to ensure its by-laws are enforceable against an owner or occupier. An order requiring compliance with a by-law can be enforced in a Magistrates Court (s 286 to 288, Act). A person who fails to comply with an adjudicator’s order commits an offence. The offence can be punishable by a maximum penalty of 400 penalty units (penalty units are set by section 5(1) of the Penalties and Sentences Act 1992 and as at January 1 2009 are $100 per unit).

I consider the Body Corporate has acted reasonably with respect to the enforcement of by-laws against the occupier of Lot 10, Ms Nicholls. It has shown that it has sought to resolve by-law issues with the occupier of the Lot for a long period of time and that it has repeated its concerns to Ms Nicholls about these issues. The 13 November 2008 incident repeated contraventions stated in the 6 November 2008 notice. In my view, there is a basis for making an order against Ms Nicholls with respect to By-Laws 1 and 6.

However, the Body Corporate has not shown that the contravention relating parking of vehicles on common property has continued or been repeated since the contravention notice was given. The 4 December 2008 committee resolution does not refer to this issue, which Ms Nicholls submitted has been sorted out.

Further, there is no basis to make an order requiring Ms Nicholls to comply with all scheme by-laws. It is not evident from the claims being made that Ms Nicholls has contravened each of the scheme by-laws. Certainly, there is no evidence that she has been given proper notice of such contraventions pursuant to the by-law contravention provisions of the Act.

The Body Corporate has also sought an order against all occupiers and visitors of Lot 10. The other occupiers of the Lot have not been named as persons against whom an order is sought. For this reason, I do not consider there is basis for making an order against all occupiers. The concept of natural justice includes the requirement for affected parties to be given the opportunity to be heard before a decision is made against them. Fairness would not be exercised if an order was made against a person without that person being made aware of the specific claim being made against him or her and having the opportunity to respond to that claim. However, any other occupiers of the Lot should note the terms of this order and be aware that the by-laws are binding on them. An order cannot be made against a person who is a visitor.