Villa Sirene [2010] QBCCMCmr 24 (19 January 2010)

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

I hereby declare that the extraordinary general meeting of 13 April 2009 was a valid meeting of the body corporate for Villa Sirene.

I further order that, within one month, Graham Langford and Angela Rogers, owners of lot 1 (respondents), must ensure that they have contributed $306 towards the body corporate’s payment of $612 pursuant to an invoice from Spains Solicitors.

I further order that, within two months, the respondents must take the actions recommended in the 20 May 2009 report from TTM Consulting (GC) Pty Ltd (TTM) relating to hinged doors closing, laundry chute closing, wardrobe doors closing and staircase tread footfall noise so as to reduce the likelihood of normal use of their lot resulting in noise that interferes unreasonably with the use or enjoyment of the adjacent lot.

I further order that the application is otherwise dismissed.

Villa Sirene Community Titles Scheme (Villa Sirene) is a 2 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Small Scheme Module Regulation (Small Scheme Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a building format plan. The plan shows that the scheme consists of a three storey building and common property. Each lot is spread over the three levels of the building with lot 1 consisting of basically the front northern quarter of the ground floor, the northern half of the second floor, and the northern half of the top floor. Lot 2 is comprised of the remainder of the building. That is, most of the ground floor including a large courtyard area, the southern side of the second floor, and the southern side of the third floor.

This application is by Hirochiyo Suita, owner of lot 2 (applicant) seeking orders against Graham Langford and Angela Rogers, owners of lot 1 (respondents). The applicant seeks to require adherence to and enforcement of decisions taken at the extraordinary general meeting of 13 April 2009. An order is also sought to require the applicants to seek permission from the body corporate before altering the appearance of their lot.

The main grounds in support of the application, provided on behalf of the applicant, were to the effect that the respondents refuse to acknowledge the extraordinary general meeting of 13 April 2009 despite one of the respondents sending an email on 6 April 2009 saying that they would not be able to attend the meeting. It is also submitted that the respondents are proposing various design changes but are not intending to seek body corporate approval as required by the by-laws.

The respondents were given an opportunity to provide written submissions. The main submissions by the respondents were to the effect that they are not sure if the body corporate has valid officers because they dispute a claimed annual general meeting of 20 February. Further, that when they received notice for the extraordinary general meeting of 13 April 2009 it was accompanied by an email stating if the meeting time was not convenient a mutually convenient time could be arranged. They informed the applicant that they could not attend and were waiting for an alternative time to be arranged. Further, that resolutions purportedly passed at the meeting of 13 April 2009 only stated that villa 1 should adhere to the by-laws. It did not authorise the subsequent issuing of the contravention notices.

The applicant exercised the right to inspect the submissions and then replied to those submissions to the effect that at the annual general meeting the respondents signed a voting paper supporting the appointment of Hirochiyo Suita as secretary, Graham Langford as treasurer, Angela Rogers as ordinary member, and Charles Hamilton as ordinary member. Further, that the respondents were actually both on the Gold Coast on 13 April 2009 but simply chose not to attend the meeting with the email of 6 April 2009 being an ‘apology’ for not attending rather than a request to change the time.

Material relating to the disputed meeting of 13 April 2009 indicates that four resolutions were purportedly passed on the vote of the applicant. These resolutions were to the effect that:

Further enquiries of the respondents’ resulted in the following additional information:

Further enquiries of the applicant in relation to alleged incidents involving excessive noise resulted in the applicant providing a detailed diary of noise complaints covering the period December 2008 to May 2009. A copy of a professional acoustic report from TTM was also provided.

I am satisfied from copies of voting papers and correspondence between the applicant and the respondents that the applicant acted in good faith to call the extraordinary general meeting of 13 April 2009.

There is some dispute regarding whether the respondents wrote to the applicants indicating that they were choosing not to attend the meeting or seeking to have the meeting reschedules. From reviewing the email correspondence I am satisfied that the respondents simply informed the applicant that they would not attend the meeting and subsequently chose not to attend or submit a voting paper.

I note that the respondents raised some questions about the validity of the annual general meeting on 20 February 2009 and whether the body corporate even has valid officers. However, for a scheme consisting of only two lots there is no need for a committee ballot to be held to allow for election of committee members. Rather, the committee will automatically consist of two individuals being an owner or nominee for each lot (Standard Module, 13(5)). Based on ownership records and the nominations made for the annual general meeting I am satisfied that Villa Sirene has a functioning committee consisting of Graham Langford and Hirochiyo Suita. Specifically, based on the nominations made for the annual general meeting, Graham Langford currently holds the position of treasurer, Hirochiyo Suita currently holds the position of secretary, and both these individuals jointly hold the position of chairperson.

I also note that there appear to have been minor irregularities in the calling or holding of the extraordinary general meeting of 13 April 2009. However, the courts have commented that non-compliance with the regulations that is of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees.[1] In particular, section 242 of the Act effectively deems a meeting to be valid if there is no challenge to the validity of the meeting within the appropriate time limit. There has been no challenge to the validity of the extraordinary general meeting of 13 April 2009 within the time limit. I am satisfied that this meeting is a valid meeting of the body corporate and all resolutions passed at the meeting are valid resolutions on the record of the body corporate.

I am satisfied that the body corporate validly resolved to pay the outstanding invoice from Spains Solicitors in the amount of $612. It is common ground between the parties that the respondents have not yet contributed to this payment although a willingness to contribute to this payment has now been indicated.

An adjudicator must make an order that is just and equitable in the circumstances to resolve a dispute (Act, 276). Orders may require a person to act, or prohibit a person from acting, in a way stated in the order and this may include requiring a person to pay money.[2] Examples of orders an adjudicator may make include orders giving effect to a motion as proposed, a variation of that motion, or reducing or increasing a contribution (Act, Schedule 5).

The obvious intention of the resolution to pay Spains Solicitors was that each owner would contribute $306 within a reasonable time. The applicants have demonstrated that the respondents have failed to do this. In the circumstances, I am satisfied that it is just and equitable to order that the respondents must act within one month to ensure that they contribute $306 towards the payment of this invoice.

Despite a dispute over the validity of this resolution, it is evident that both parties subsequently agreed to engage TTM as resolved and the report has been obtained and apparently paid for.

In the circumstances, it is not necessary or appropriate to make any order in this respect.

The body corporate passed a resolution that effectively states that the respondents should comply with the by-law relating to noise. Obviously the respondents have a legal obligation to comply with the by-laws. However, a resolution is a decision of the body corporate and it is difficult to see how this resolution can have any legal effect or be enforceable against the respondents. At best, this resolution could be seen as justification for the body corporate issuing a contravention notice against the respondents in the approved form. However, the present application is by the applicant in her capacity as owner and occupier of a lot. The appropriate procedure for an owner or occupier to bring an application regarding contravention of by-laws is to firstly ask the body corporate to issue a contravention notice then bring the application if the body corporate does not inform them that the notice has been issued (Act, 185). I therefore do not consider it appropriate to make any orders based on an alleged breach of the by-laws pursuant to the present application.

However, the concerns raised by the applicant relate to alleged excessive noise being caused by the occupiers of lot 1. There is a general legislative obligation that the occupier of a lot included in a scheme must not use, or permit the use of, the lot or the common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot (Act, 167). If there is evidence that this provision is being contravened then it would be appropriate to make orders that effectively enforce the desire expressed in the body corporate’s resolution that occupiers of Villa 1 not make noise likely to interfere with the peaceful enjoyment of a person lawfully on the common property or another lot.

I have reviewed the report from TTM. This report satisfies me that the common wall between lots 1 and 2 provides a reasonably acoustic barrier for airborne sound. However, the report also satisfies me that impact noise is being transferred from lot 1 to lot 2 via structural elements of the building. In particular, the report from TTM does not indicate that the audible impact noise resulted from any excessive noise being created by the occupiers of lot 1. Rather, the report indicates that there is audible noise transfer from potentially normal activities such as floor footfall noise, furniture dragging, hinged doors closing, laundry chute closing, wardrobe doors closing, and staircase tread footfall noise.

There is therefore some dispute about whether the occupiers of lot 1 were deliberately making noise to create a nuisance or if any noise was simply as the result of normal daily activities. The applicant has provided a detailed diary of noise complaints covering the period December 2008 to May 2009. This diary relates to alleged incidents involving excessive noise and indicates a belief that the noises are deliberate harassment. I accept that this diary, in particularly the detailed nature of the entries, provides satisfactory evidence that the noises recorded were clearly audible from within lot 2. That these types of noises are audible within lot 2 is also corroborated by the TTM report. However, there is no satisfactory evidence that the respondents, their family members, or their guests were deliberately making noise to disturb the occupiers of lot 2. Further, the respondents have provided submissions to the effect that they have an inherent right to reasonable enjoyment of their land but that the respondents no longer reside at the premises and the noise issue is no longer relevant. In these circumstances, I do not consider it appropriate to make any noise related order against the previous occupiers of lot 1.

However, the detailed evidence provided by the applicant is such that it satisfies me that certain impact noises created in lot 1 are regularly and clearly audible from within lot 2. These particular impact noises are the noises caused by the closing of internal doors, the closing of the laundry chute, the closing of wardrobe doors, and footfall noise on the staircase. I consider that these normal activities within lot 1 being clearly audible from lot 2 amounts to use of lot 1 in a way that interferes unreasonably with the enjoyment of lot 2 (Act, 167). Technically, the previous occupiers of lot 1 were contravening the Act even if they had no intention of causing any harassment. In making an order that is just and equitable to resolve the dispute and prevent continued contravention of the Act by future occupiers it is obvious that it is not appropriate to make an order that prevents occupiers of lot 1 from closing doors, walking on the stairs, or using the laundry chute. However, the TTM report provides some simple recommendations in relation to installation of rubber, foam or carpet to reduce the impact noise created by these activities. I consider that the respondents, as owners of lot 1, are the persons who should be required to take these steps to ensure that ordinary use of their lot will not contravene the Act by unreasonably interfering with the enjoyment of the neighbouring lot. I will therefore order that, within two months, the respondents must take the actions recommended in the 20 May 2009 report from TTM Consulting (GC) Pty Ltd (TTM) relating to hinged doors closing, laundry chute closing, wardrobe doors closing and staircase tread footfall noise. These are the particular noises that are shown regularly in the noise diary provided by the applicant and the minimisation of these noises appears likely to reduce the risk of normal use of lot 1 resulting in noise that interferes unreasonably with the use or enjoyment of lot 2.

Obviously if any individual occupier deliberately or recklessly makes excessive noise despite these measures then an order can be sought against that individual occupier. However, I am not satisfied it is appropriate to make any such order on the present application.

There is some inconsistency in the submissions on behalf of the respondents in respect of the keeping of animals. On one hand it is submitted that the respondents are no longer occupying the lot. On the other hand, it is submitted that the respondents would have a right to keep a dog of less than 10 kilograms and that the respondents should be approved, in accordance with the by-laws, to keep a dog of up to 10 kilograms.

As a matter of law, it would be premature to make any determination regarding the keeping of a dog by occupiers of lot 1. The by-laws require that an occupier obtain body corporate approval before keeping an animal. An application must then be made to the body corporate and the body corporate must act reasonably in considering that application (Act 94(2), 100(5)). Obviously reasonable conditions can be imposed and the keeping of the animal cannot create a nuisance or interfere unreasonably with the enjoyment of another lot (Act, 167).

In this instance, the noise diary provided by the applicant includes evidence of occasional barking of a dog for short periods of time. This is evidence that the respondents were keeping a dog contrary to the by-laws. However, the applicant has not followed the correct procedures for seeking an order in relation to a contravention of the by-laws (Act, 185). Further, I am not satisfied that the evidence of occasional barking for short periods of time amounts to a nuisance or unreasonable interference with the applicant’s lot. Therefore, I do not consider it appropriate to make any orders in relation to the keeping of the dog.

The application also makes some general claims about the intention of the respondents to make some changes to the appearance of their lot. As a matter of law, it would again be premature to make any determination regarding potential changes to the appearance of the lot. Similarly to the keeping of an animal, the by-laws require that an occupier obtain body corporate approval before making changes top the appearance of the lot. An application must be made to the body corporate and the body corporate must act reasonably in considering that application (Act 94(2), 100(5)).

I am not satisfied that it is necessary or appropriate to make any order against the respondent in relation to the external appearance of their lot based upon the present application.

[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.
[2] Sail Isle Pty Ltd v Body Corporate for Surfers Aquarius [2006] QDC 109 (19 May 2006) at paragraphs 10-12.

Number of Scheme:	26546
Name of Scheme:	Villa Sirene
Address of Scheme:	105A Albatross Avenue MERMAID BEACH QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Villa Sirene [2010] QBCCMCmr 24 (19 January 2010)