Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

ADMINISTRATION OF COMMON PROPERTY - whether a recently pruned plant on common property should be left to regrow.

BY-LAWS - whether the body corporate should enforce the by-laws against an owner accused of making excessive noise by stomping on the stairs and slamming his front door.

Act, ss 62, 94(1)(b)&(2), 182(1)-(2), 183(1)(2), 185(2)(a), 252E(5), 276(1), 280, 337(2)(g)(i), 339(5)(a); Building Units Titles Act 1965, s 13; Building Units and Group Titles Act 1980, s 5(10).

• [1] Mr Clifford is concerned about a bougainvillea on common property near his lot 2, and excessive noise allegedly made by Mr MacRae and his partner when climbing the stairs to lot 4 or "slamming" their front door.
• [2] Cabana Court consists of 6 lots across two levels of a single building, with three on the ground level and three above. The upper level is reached via a flight of stairs on common property in front of Mr Clifford's lot. The bougainvillea is growing near those stairs.
• [3] Ms Lucht of lot 1 says the body corporate committee voted to remove the bougainvillea because it was growing onto the stairs where its thorns might cause injury. I gather Mr Clifford was opposed to its removal as it screened some of his windows, affording him greater privacy. He made two conciliation applications to try to resolve the issue, though no one from the body participated in the second. Mr Clifford ultimately removed the bougainvillea himself but now asks that it be permitted to regrow.
• [4] Mr Clifford seeks orders in the following terms:
  1. The outcome I would like in relation to the bougainvillea, is that it remain and be allowed to grow and I will tend to it and maintain it from this point onwards.

I will keep the bush, the leaves etc at least 6 inches from the stairs.

1. I would like to the body corporate to enforce the body corporate rules against Justin Macrae and his girlfriend and visitors.
2. I would like them to speak to Justin Macrae and explain to him that his conduct is unacceptable.
3. I would like them to confirm and explain the body corporate rules to Justin MacRae in relation allowing his neighbours to have peaceful enjoyment.
4. I would like them to tell Justin Macrae to desist from making intentional noise by stomping and running on the stairs, slamming doors and to allow me to have peaceful enjoyment of my property.
5. Because the respondent did not make a reasonable attempt to participate in conciliation, I am seeking an order that the respondent pay me the conciliation applications and adjudication application fees, as per the Body Corporate and Community Management Act 1997 s280 (1)(c) and s280 (2).
6. I would like to be reimbursed by the body corporate $75 for the cost of me removing the bush myself after 3 months had gone by and they had not removed as agreed.
7. That Justin Macrae Accept in writing to stop intimidating, threatening and menacing Mr Clifford.

• [5] Both sides of the dispute refer to a conciliation agreement and accuse one another of breaching it. But it is not my role to interpret or enforce a conciliation agreement. That agreement was made between the parties in an attempt to resolve the dispute cooperatively and informally. The present adjudication application will be determined according to the Act and Standard Module. Evidence of anything said or done in a conciliation session is inadmissible.[1]
• [6] While it seems there was previously a dispute about whether the bougainvillea should be permitted to remain, and if so, how and by whom it should be maintained, that dispute ended when Mr Clifford removed it. According to Mr Clifford, all that remains is a stump "now sprouting fresh growth". He would like it to be permitted to regrow if he ensures it remains off the stairs.
• [7] There is no evidence of a dispute about that proposal. Mr Clifford does not seem to have asked the body corporate to allow the bougainvillea to remain as a freshly sprouting stump on condition that he keeps it clear of the stairs. The committee said in its submission that it has no objection to that.
• [8] In the absence of a dispute with respect to the first order sought by Mr Clifford, there is no role for an adjudicator.[2]
• [9] Mr Clifford also seeks payment of $75 for the hour-and-a-half he spent removing the bougainvillea. The committee is unwilling to pay, saying he removed the bougainvillea without the body corporate's knowledge or approval.
• [10] I can not see that the body corporate is under any obligation to pay Mr Clifford. There is nothing in the Act, Standard Module, or by-laws to require a body corporate to pay an owner who removes a plant from the common property without the direction, agreement, or approval of the body corporate. In fact, the plant's removal was a contravention of by-law 4(a) of schedule 3 of the Building Units and Group Titles Act 1980, which remains in effect at Cabana Court as discussed below:

(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated upon common property...

• [11] Via orders 2-5, Mr Clifford seeks to compel the body corporate to enforce its by-laws against Mr MacRae with respect to noise. He gave the committee a Form 1 Notice to body corporate of a contravention of a body corporate by-law on 28 March 2025, identifying the relevant by-law as "noise" and describing the contravention as:

Intentionally stomping and at times running on the stairs outside my unit to make excessive noise, intentionally slamming his doors, wooden door and security screen, to make excessive noise.

• [12] Cabana Court was established under the Building Units Titles Act 1965 (BUT Act), continued operation under the Building Units and Group Titles Act 1980 (BUGT Act), then transitioned to the present Act when it came into effect in 1997. Its by-laws are a product of that history.
• [13] Under the BUT Act, the by-laws were as set out in the first and second schedules to that Act.[3] The second schedule by-laws could be amended, and on 23 November 1979 an exclusive use parking by-law was added to them. Relevant to the present dispute, by-law 1(b) of the second schedule said:

A proprietor shall not make undue noise in or about any unit or common property.

• [14] When the BUGT Act commenced, the BUT Act by-laws remained in effect except where inconsistent with the BUGT Act (aside from its schedule 3 by-laws), and the by-laws at schedule 3 of the BUGT Act were added to them except where inconsistent with the existing BUT Act by-laws.[4] By-law 1 of schedule 3 of the BUGT Act states:

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.

• [15] If this imposed a different standard of quietness than by-law 1(b) of the second schedule of the BUT Act, the latter remained in effect.
• [16] When the present Act commenced in 1997, the by-laws in effect at that time were carried over.[5] The body corporate can change them but has not.[6] Consequently, owners remain obliged not to make "undue noise", where "undue" standardly means excessive or more than reasonable or appropriate.[7]
• [17] The body corporate must enforce its by-laws, and act reasonably when exercising that function.[8] It may issue an owner with a by-law contravention notice if it reasonably believes they have breached a by-law.[9]
• [18] In this case, the body corporate declined to take any action in response to Mr Clifford's Form 1, claiming a lack of evidence. A submission was lodged on behalf of the committee by Mr MacRae (who is the chairperson) stating that there were no recordings of the alleged noise, no witness statements, and no similar complaints from other owners.
• [19] The only other submission was from Ms Lucht, who lives below Mr MacRae. She said she has never experienced excessive noise from Mr MacRae or his partner, nor heard complaints of any such noise from other occupiers.
• [20] Mr Clifford points out that the stairs are right in front of his lot, so he is more likely to be affected than other occupiers. That is correct, though all six lots are close to one another and to the stairs, and Mr MacRae's front door that is allegedly being slammed is nearer to Ms Lucht's lot than Mr Clifford's. It is not unreasonable to expect that other owners might have become aware of repeated excessive noise from the stairs and Mr MacRae's front door.
• [21] Mr Clifford says his email complaints to the body corporate are evidence of the excessive noise. But at most they are evidence of the frequency with which Mr Clifford felt disturbed by these sounds, not that the sounds were necessarily objectively excessive.
• [22] I am not satisfied that the body corporate had sufficient evidence to compel it to the conclusion that Mr MacRae was making undue noise in contravention of the by-laws. Consequently, I will not make orders 2-5.
• [23] At order 8, Mr Clifford asks "that Justin Macrae accept in writing to stop intimidating, threatening and menacing". He does not provide any evidence of this behaviour though, aside from some angry correspondence about Mr Clifford's alleged interactions with another owner that included the following from Mr MacRae:

If you harass or intimidate her again, I'm going to knock on your door, and we're going to have some words!

So once again, if you harass or intimidate Sheryl, we will have some fucking words!

• [25] I have no information about Mr Clifford's preceding interactions with "Sheryl".
• [26] Mr Clifford does not identify how this correspondence was a breach of the Act, Standard Module, or by-laws. It was not mentioned in the Form 1 he issued to the body corporate, which is a pre-requisite to seeking dispute resolution under the Act in relation to an alleged by-law contravention.[10]
• [27] Mr Clifford seems to be seeking an order against Mr MacRae, yet it is the body corporate that is the respondent to the application. It is not evident that Mr MacRae was acting on behalf of the committee or body corporate when he sent this correspondence.
• [28] I am not satisfied that I should make order 8.

Reimbursement of Mr Clifford's application fees

• [29] An adjudicator "may" order reimbursement of conciliation and adjudication application fees if a conciliation in relation to the same dispute ended "because the respondent failed, without reasonable excuse, to participate".[11] Mr Clifford submitted a certificate signed by the conciliator in relation to conciliation application 0122-2025 stating:

I have referred your application back to the commissioner because the body corporate did not authorise a representative for conciliation. Therefore I consider the respondent did not make a reasonable attempt to participate in conciliation.

• [30] However, that was not the only conciliation application lodged in relation to the present dispute. In 0122-2025, Mr Clifford sought to have the body corporate address Mr MacRae's alleged by-law contraventions, but he also sought body corporate permission to plant bushes in place of the bougainvillea after the body corporate removed it rather than seeking to retain the bougainvillea as he does in the present application.
• [31] In earlier conciliation application 0992-2024, Mr Clifford sought to have the body corporate keep the bougainvillea or replace it with other plants. Representatives of the committee participated and an agreement was reached.
• [32] Mr MacRae said he and his partner were willing to participate in 0122-2025 on behalf of the committee but were not permitted as the dispute partially concerned their alleged by-law contraventions. He said the other committee members were working on the day the conciliation was scheduled.
• [33] In these circumstances I do not consider it appropriate to order the body corporate to reimburse Mr Clifford's application fees. Some effort was made to resolve the dispute at conciliation, while there were understandable factors constraining the committee's participation the second time conciliation was attempted.

• [34] For these reasons, the application is dismissed in its entirety.

[3] Building Units Titles Act 1965, s 13.

[4] Building Units and Group Titles Act 1980, s 5(10).

[7] Cambridge Dictionary https://dictionary.cambridge.org/dictionary/english/undue; Collins Dictionary https://www.collinsdictionary.com/dictionary/english/undue; both accessed 24 September 2025.