1 Newstead Avenue [2010] QBCCMCmr 35 (28 January 2010)

Last Updated: 19 March 2010

REFERENCE: 0756-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	31321
Name of Scheme:	1 Newstead Avenue
Address of Scheme:	1 Newstead Avenue NEWSTEAD QLD 4006

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

The Body Corporate,

I hereby order that James Seymour, David Ingram and Ben Davidson, owners and occupiers of Lot 22, included in 1 Newstead Avenue community titles scheme 31321 must comply with: By-Law 17.1 (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 27.1 (Behaviour of Invitees) and take all reasonable steps to ensure that their 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 0756-2009

“1 Newstead Avenue” CTS 31321

APPLICATION

This is an application by the Body Corporate for “1 Newstead Avenue” (the Applicant), against the owners and occupiers of lot 22, James Seymour, David Ingram and Ben Davidson (the Respondents), seeking an order “That the owners of lot 22 must not create, or permit others to create, any noise in the lot or on the common property that is a nuisance to the occupiers of other lots in the scheme, whether the nuisance is caused by the operation of a stereo or television, vocally including loud yelling, screaming and talking, or in any other manner whatsoever”.

The grounds to the application are to the effect that:

• The owners of lot 22 purchased the unit in October 2007 after which, they took up residence within the unit. Shortly thereafter, the Committee and Resident Manager commenced receiving complaints in relation to the number of parties and/or gatherings held within the unit which went well into the early morning hours and with unacceptable levels of noise being clearly audible to the occupants.
• There have been multiple complaints filed by residents within the complex advising of sleep disturbance caused by the occupants of the lot.
• The complaints are not limited to noise within the unit but also extend to noise created by the occupants and their guests when entering/exiting the common property, often between 11pm and 5am which can be verified as the complex has a security system which records the unit number attached to the fob used.
  

Attached to the application were no less than 20 written complaints to the Resident Manager covering a period from March to May 2009 regarding noise emanating from lot 22 and also the state of the common property, in particular the lifts, after parties held in lot 22.

I note that a conciliation session conducted on 29 May 2009 resulted in a conciliation agreement being reached between the parties, however, I understand that, according to the body corporate, the owners and occupiers of lot 22 have not abided by that agreement; hence the lodgement of this application to resolve a dispute by the body corporate.

JURISDICTION

“1 Newstead Avenue” was registered as a building format plan of subdivision on 7 May 2003 comprising 22 lots and common property. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the Accommodation Module).

This is a dispute between the body corporate and the owner of lot 31 and comes within the dispute resolution provisions of the Act (see sections 226, 227 & 228).

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)).

SUBMISSIONS

In accordance with section 243 of the Act, a copy of the application was provided to the body corporate manager, Strata Vision Group, for distribution to the owners of all lots, and specifically to the owners and occupiers of lot 22, as the Respondents, with an invitation to respond to the matters raised in the application.

Submissions from owners of 9 lots were received. Without exception, these submissions were unequivocally in support of the application lodged by the body corporate, many of them providing further detail of complaints regarding the noise emanating from lot 22 and the way the common property is left by visitors to and occupiers of, lot 22 after parties are held there, including:

• Loud foot steps, loud conversations, loud noise of furniture moving, people talking on the balcony, doors slamming, often until 1, 2 and 3am in the morning;
• Loud music, sometimes starting as early as 5am;
• Empty bottles of alcohol found in the lift, in the front entry and outside the building after parties in lot 22
• Spilt liquid in the lift, foyer and entry;
• Very loud bass noise from computer games or TV/stereo late at night and early morning
• Specific details of disturbance on 20 February 2009, 6 March 2009, 8 March 2009, 19 March 2009, Monday, Tuesday and Wednesday nights (25 – 27 May 2009), and 18-19 July 2009.
  

Despite David Ingram requesting an extension of time within which to lodge a submission in response to this application on 28 September 2009 (an extension until 7 October 2009 was granted), no submission was forthcoming from any of the Respondents. On 14 January 2009, an administrative officer called David Ingram informing him that the office still has not received any submission from the Respondents. He asked if he could have until close of business on 15 January 2009 to make a submission. He was informed by the administrative officer that if he had a submission to make, it had to be received by close of business that day to be considered.

David Ingram emailed a brief response on behalf of the Respondents stating that they would like to put the issue to rest and move forward. During the time when most of the complaints were received, Mr Ingram states that the original owners were not living in the apartment, and the tenants did not fully understand the rules laid out by the body corporate. They understand, states Mr Ingram, that this is not acceptable and that their guests are their responsibility. He concludes by stating that since September, when the other tenants moved out, there have been minimal complaints and they plan to keep it that way.

DETERMINATION

Applicable Law

Section 167 of the Act provides that an occupier 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 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.

By-law 17 provides, in part, as follows:

17. Noise

17.1 An owner or occupier of a lot, their guests, servants or agents shall not make or permit any noise likely to interfere in any way with the peaceful enjoyment of other owners or occupiers of lots or of any person lawfully using the Common Property. In particular, no owner or occupier of a lot shall hold or permit to be held any social gathering in his lot which would cause any noise which unlawfully interferes with the peace and quietness of any other owner or occupier of a lot, at any time of day or night and in particular shall comply in all respects with the Noise Abatement Act 1979, as amended.

By-law 27 provides, in part, as follows:

27. Behaviour of Invitees

27.1 An owner or occupier of a lot shall take all reasonable steps to ensure that his 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.

Decision

The by-laws are part of a scheme’s community management statement (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 the Respondents as the persons against whom an order is sought. The Body Corporate has demonstrated that before making this application it gave the occupiers of Lot 22 two Notices of Continuing Contravention of Body Corporate By-laws; one dated 28 January 2008 in relation to an alleged breach of by-law 17.1 (Noise) on 24 November 2007, 7/8th December 2007 and 13th January 2008 and one dated 23 March 2009 in relation to a breach of by-laws 17.1 (Noise) and 27.1 (Behaviour of Invitees) on 3 and 8 March 2009.

There are however, some issues with the notices.

Firstly, on both occasions 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, it could be argued that one of the alleged incidents stated in the notice is not regulated by the relevant by-laws (for example, smoking in common areas). Section 167 of the Act may apply in the circumstances of this incident however. 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 Mr David Ingram has acknowledged the contraventions in his submission.

Subsequent to the notices being given, further complaints have been made to the Body Corporate about further incidents that occurred on 25 – 27 May 2009 and 18-19 July 2009. The committee then decided to make this application. As I have indicated, I do not consider the incidents to be ones of a continuing nature. In my view, the circumstances of the incidents suggest that contraventions stated in the Notices dated 28 January 2008 and 23 March 2009 have been repeated. Given the time a future contravention notice has effect, the contraventions were repeated within three months of notice being given to the Respondents.

These circumstances support making an order against the Respondents. 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 occupiers of Lot 22. It has shown that it has sought to resolve by-law issues with the occupiers of the Lot for a long period of time and that it has repeated its concerns to the owners and occupiers of lot 22 about these issues. In my view, there is a basis for making an order against the Respondents with respect to By-Laws 17.1 (Noise) and 27.1 (Behaviour of Invitees).

ORDER

For these reasons I have made the order above.