On that day it became apparent that Mr Kanter's contempt application was but a small part of the wider dispute between the parties regarding the true meaning of the consent orders, and both parties wished orders to be made by me giving effect to the consent orders made on 16 June 2009 and enforcing what they said were their rights arising out of these consent orders.[1]

1. Judge Harbison determined that it was worthwhile attempting to resolve outstanding issues by way of a further compulsory conference and for this purpose the matter was listed before Senior Member Levine on 1 October 2009. Once again, the parties were able to reach a settlement. This time the only order made on the file was that the application was dismissed and no order was made for costs. The parties entered into terms of settlement varying the original agreement of 16 June 2009. However, this agreement, once again, was the subject of dispute and ultimately, at a directions hearing on 12 November 2009, Judge Harbison ordered that any application by Michael Kanter for contempt of the Tribunal and any application by either party in respect of the agreement between the parties dated 30 September 2009 - that is, the second settlement agreement - be listed before Her Honour for hearing on 16 February 2010.
2. At the hearing before Judge Harbison on 16 February 2010, both parties were legally represented. Counsel for the Applicant announced that the Applicant did not wish to proceed with an application for contempt. Both parties agreed that the orders of 30 September 2009 meant that the previous application for contempt which the Applicant had filed, was struck out.
3. Counsel for the Vantwests made an application that the Applicant pay their costs in respect of the contempt proceeding. However, there being no fresh application for contempt, and the previous application having been struck out with no order as to costs, Her Honour declined to make such an order.
4. The balance of the hearing was taken up with consideration of an application filed by the Respondent pursuant to Her Honour's Orders of 12 November 2009. This application sought relief under two separate sections of the VCAT Act. In particular, the Respondent sought an order correcting the consent orders made on 16 June 2009 under s 119 of the VCAT Act or alternatively further orders to clarify and give effect to the consent orders made on 16 June 2009 under s 130 of the VCAT Act. The objective in seeking either of these orders would have been to give effect to a subdivision of the common property, as originally contemplated by the Vantwests. Her Honour declined to make orders under s 119 on the basis that it would have been inappropriate to do so:

The problem between the parties appears to be that each of the parties has strongly differing views about where the dividing fence and the new title boundary should be... there was a genuine misunderstanding between the parties from the beginning as to the location of the proposed new boundary line which was the subject of the consent orders.

That being so, it is my view that s 119 can have no application. I am not persuaded that the order contains a clerical mistake or an error arising from an accidental slip or omission. If the order contains a mistake, it is a mistake caused by a fundamental misconception between the parties as to where it was that the dividing fence referred to would be located.[2]

1. Similarly, Her Honour declined to make an order pursuant to s 130 of the VCAT Act:

I have found as a fact that the parties are not agreed as to the location of the new proposed title boundary and were not agreed at the time the consent orders were made. The proposed order seeks to impose upon Mr Kanter the location argued for by Milroy Investments Pty Ltd. The use of s 130 in these circumstances is clearly inappropriate.

Thus the applications which have been brought by Milroy Investments Pty Ltd will be dismissed.[3]

1. By this stage, nearly 2 years had elapsed with the parties no closer to resolving their differences. The dispute was again brought back to the Tribunal by the Applicant in two applications which sought orders clarifying the meaning of a Rule or Rules; and requiring the Respondent to comply with those Rules. The Respondent sought similar orders. The Applicant also sought orders that the Respondent be required to provide adequate space for visitors off the common area, and that they be penalised for breaching the Rules.

1. The Rules adopted by the Owners Corporation were the Model Rules as set out in the Owners Corporations Regulations 2007. The Applicant claimed there had been a breach of Rules 1.1; 3.1; 3.2; and 5.1 by the Respondent and, in turn, the Respondent claimed there had been a breach of Rule 5.1 by the Applicant.
2. The relevant rules are set out as follows:

1.1 Health, safety and security of lot owners, occupiers of lots and others

A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier or use of another lot.

(1) An owner of occupier of a lot must not obstruct the lawful use and enjoyment of the common property by any other person entitled to use the common property.

An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle -

(a) to be parked or left in parking spaces situated on common property and allocated for other lots; or

(b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or

(c) in any place other than a parking area situated on common property specified for that purpose by the owners corporation.

5.1 Behaviour of owners, occupiers and invitees on common property

An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property.

1. In addition, on 3 March 2008, the Owners Corporation passed the following resolution, upon which the Respondent sought to rely:

As per the Standard and Model Rules of the Owners Corporation, it was resolved that all members park only in their designated car spaces. There must be clear access on the common property at all times. Due to the fact that this common property area forms part of the factory entrance to factories 3 and 4, it was resolved that vehicles be allowed to park only for loading and unloading purposes.

1. On 1 October 2011, following a three-day hearing in August 2011 before Member Nihill,[4] the Tribunal ordered that the Respondent comply with the Rules of the Owners Corporation and in particular Rule 3.2(a), (b) and (c); and Rule 5.1.
2. The behaviour impugned by both parties in the current proceeding significantly reflects the nature of complaints and evidence accepted by Member Nihill in the August 2011 hearing. While clearly such evidence is not directly relevant to the current proceeding, it does add weight to the respective claims of both parties that certain alleged behaviour has continued, largely unabated. I propose to make reference to certain extracts from Member Nihill's Reasons of 1 October 2011 and comment to the extent to which the evidence which was then accepted is again reflected in evidence adduced by both parties in the current proceeding.
3. In relation to the use of the common property for parking vehicles contrary to Rule 3.2, Member Nihill summarised the evidence as follows:[5]

The question of vehicles on this common property is at the heart of this dispute. The nature of Mr and Mrs Vantwest's business is that cars and trucks come to the factory, and are fitted with bull bars. Bull bars are loaded and unloaded. Cars and trucks go in and out. The owners and those who work for them have vehicles. The three parking bays provided for the use of Milroy Investments do not, according to Mr and Mrs Vantwest, meet the need. They said that they need to load and unload on the common area. They said that it would be unsafe and impractical to use the parking bays for loading and unloading, even if they were not always needed for other vehicles. They said loading and unloading from a parking bay would be unsafe because much of the equipment they are dealing with is heavy and unwieldy.

Mr Kanter objected to the use by Milroy Investments of this common area in this way. He said that the Milroy Investments parking bays were not always being used, and that even if they were this was a matter for Milroy Investments to resolve. They should make one available for loading and unloading. He argued also that they should use the inside of the factory to load and unload, and certainly should use the factory to work on vehicles. He said that there were cars and trucks constantly coming in and out, parking on the common area, and obstructing access to his parking bays and to his business. He described the Vantwests' use of the common area as including loading and unloading, leaving vehicles on it to work on them, that is fit bull bars to them, and parking. He said that visitors parked on the common areas for extended periods of time.

Mr Kanter said that he asks customers not to come to his business, because of the possibility of them not being able to get in or out, and because of the high levels of stress and conflict associated with the issue of parking. He does deliveries early in the morning. During the day he usually remains at the factory, and only rarely has visitors. Mr Kanter said that he has arranged his business around this unfortunate dispute, and that this has limited his business and caused him considerable hardship and distress.

1. In the current proceeding, the Vantwests again presented the same arguments as to why they utilised the common property in the way in which they did and indeed that such use was both reasonable and necessary for the proper and efficient conduct of their business. On this occasion, for reasons detailed below, the evidence does not support the contentions made by the Vantwests. In particular, the evidence currently before the Tribunal convincingly supports the Applicant's contention that the Respondent can, and on occasions has, operated its business without utilising the common property other than as a driveway.
2. In relation to Rule 3.2(a)[6] Member Nihill commented:

There had been allegations by Mr Kanter that visitors to Milroy Investments had parked in Mr Kanter's parking bays in the past. Mr and Mrs Vantwest accepted that this had happened, on occasion, and they told Mr Kanter that they were very sorry about this. They said that they told all their customers and visitors that this was not permitted, and extra signage had been of assistance.

The rules are clear in this respect. Vehicles cannot be left, even for brief periods, in parking bays allocated to other lots.

On the evidence before the Tribunal, this was not a current issue, although it had been from time to time in the past.

1. In the current proceeding there were isolated incidents identified by the Applicant where his parking bays had been used by customers of the Respondent. In all but one incident, the relevant customer promptly moved his vehicle upon request. In my view, this matter is still a current problem for the Applicant by reason of the position expressly taken by the Respondent. In particular, Mrs Vantwest states that if their customers fail to remove their vehicle from the Applicant's parking bays when requested, then the Applicant is entitled to contact police. In my view, the position adopted by the respondent abrogates its responsibility to ensure that its customers either park in the Respondent's parking bays or in the street. If the customer fails or refuses to do so, then the Respondent can simply refuse to serve the customer.

1. In relation to Rule 3.2(b)[7] Member Nihill commented:

This issue was the most contested, with voluminous evidence presented by Mr Kanter - photographs and video clips of innumerable instances of vehicles coming and going on the common property. Mr and Mrs Vantwest also provided photographs. The evidence showed three kinds of use of the common property, that is the area in front of the roller doors and the driveway leading up to it. The first kind of use was loading and unloading. Sometimes trucks, vans and other vehicles drove up the driveway and stopped in front of the Milroy Investment roller door. Bull bars and other equipment and items were loaded or unloaded, and then the vehicle drove away. Sometimes these visits were brief, sometimes the loading or unloading took up to an hour. The second kind of use of the area was by vehicles parking, sometimes for extended periods. Some of these vehicles were the Vantwests' own. ... The third kind of use appeared to be for working. Sometimes Milroy Investments staff could be seen working on vehicles for extended periods of time, possibly fitting bull bars.

Mr Kanter submitted that all parking, of visitors and customers, should be within the parking bays, that Milroy Investments parking bays should be left available for this purpose, and that work should be conducted inside the factory, not outside on the common area.

In some of the photos it could be seen that there were empty car spaces on the Milroy Investments side, and yet the visiting vehicles did not use them. In some it could be seen that the Milroy Investments parking bays were full. In some it could be seen that one or more Milroy Investments parking bays were filled with equipment rather than vehicles.

There were confusing and conflicting signs. That part of the common area in front of the roller doors was marked "Keep Clear". There was a sign, erected by Mr Kanter, stating "No Parking in Yellow Keep Clear Area". One of the Milroy Investment signs said "Image Bull Bars Client Parking in Parking Bays". Another said "Image Bullbars Courier Pickups and Deliveries in Front of Roller Door only".

Most of the area in front of the roller door was common area. Mr and Mrs Vantwest spoke of this area, and that side of the driveway, as "their side". Mr Kanter objected to this, saying that they were not privately owned sides, but shared common property. Mr Kanter was legally correct in this, but it is understandable how this view of the area came to be held by Mr and Mrs Vantwest...[here there is reference to prior attempts to divide the common property]...

I accept that there is evidence of considerable traffic over the common area. The question with respect to 3.2(b) is, does it obstruct a driveway, pathway, entrance or exit to a lot? ...

...The most contested question was whether or not there was obstruction to Mr Kanter's driveway, pathway, entrance or exit. On some occasions it appeared that there was. When vehicles were parked in front of Mr Kanter's parking bays, cars could not get in to them or out of them. Mr and Mrs Vantwest said that cars were never in them anyway, and that if there were cars parked in Mr Kanter's bays, Mr and Mrs Van Twest would ensure that they were not blocked in. On this point I accept Mr Kanter's argument - it does not matter whether the bays are being used. Mr Kanter's right to use them exists, and Rule 3.2(b) prohibits the use of the common area in such a way as might prevent anyone driving in or out of Mr Kanter's parking bays.

Where vehicles are parked or left so that Mr Kanter or his visitors could not get in or out of the bays, or drive up or down the driveways, the application of rule 3.2 (b) is clear. It is less clear when applied to the - apparently more common - scenario of vehicles parked or standing at the top of the driveway, in front of the Milroy Investments roller door. Mr Kanter argued that even when they were here, and he or his visitors could drive up and down the driveway, and in and out of the parking bays, it was still not possible to make a proper turn so as to exit front forward out of the driveway.

Mr Kanter referred to requirements for safe exit and entry being the ability to drive in and out in a forward position. He said that in order to manoeuvre into a forward position, a wide turning circle is needed. He and his visitors needed to be able to swing out backwards, back up towards the roller doors, adjust position, and then drive down the driveway front first. Mr and Mrs Vantwest said that this was perfectly possible, even when vehicles were parked in front of their roller door. The area was wide enough to leave ample room for reversal towards Mr Kanter's roller door, and then for forward exit. Minor adjustments may sometimes be necessary, they said, if a large vehicle were there, such as might be made in a public car park. On Mr Kanter's side there is 2.3 metres from the parking bays to the common area, then the common area is 6.2m wide. In many, though not all, of the photos, the vehicles parked or left standing by or for Milroy Investments were standing partly on the area between their parking bays and the common area, and partly on the common area. In these photos therefore, the space left for Mr Kanter or his visitors to manoeuvre vehicles was at least approximately five metres. In my view this is ample room to turn a vehicle in the way described above. It may not be possible to turn around in a full, uninterrupted circle, but it is not necessary, in my view, to do so in order to be in an "unobstructed" state. I am not satisfied, on the balance of probabilities, that there is obstruction in the sense in which it is expressed in rule 3.2 (b) whenever the Milroy Investment vehicles are standing partly on the area of their title, and partly on the common area in front of the Milroy Investments roller door. When, on the other hand. the vehicles are parked right in front of Mr Kanter's parking bays, or in the middle of the driveway then, in my view, this is obstruction within the meaning of rule 3.2 (b)...

1. In the current proceeding, the evidence of similar activities on behalf of the Respondent on the common property as detailed above, was very significant and compelling. Vehicles of the Respondent and its customers were most frequently parked wholly within the common property, which often became apparent only from photographs taken by the Applicant from the street. Furthermore, further photographic evidence compiled by the Applicant demonstrates very clearly that safe and convenient access to the Applicant's parking bays by the Applicant and his customers is obstructed by the Respondent, even when vehicles are only partly parked on the common property.
2. In my view, the evidence presented by the Applicant in this proceeding demonstrates that the manner in which the Respondent routinely conducts its operations on the common property and permits vehicles to park on the common property constitutes a serious and persistent breach of Rule 3.2(b).
3. In relation to Rule 3.2(c)[8] Member Nihill commented:

Rule 3.2 (c) as stated, appears clear. Vehicles must not be parked or left in any place on common area other than an area designated as a parking area by the owners corporation.

1. Member Nihill noted that for the purpose of Rule 3.2 (c), the Vantwests relied upon the resolution of the Owners Corporation made on 3 March 2008, quoted above. Member Nihill's finding in this respect, which I endorse, is quoted below.
2. In comprehensive written Reasons, the Tribunal made the following findings:

...The owners corporation did not have the power to make such a resolution. Rule 3.2(c) unless and until changed by the owners corporation does not allow for this option. Vehicles cannot be parked, or left. "Left" means something different from parked, or there would be no need for both words to be used. Vehicles cannot stand, on my reading of rule 3.2 (c), for any purpose, including loading and unloading.[9]

Rules 3.2 (a), (b) & (c) Vehicles and parking on common property

... It is not permissible under these rules for any person to park in another lot owner's parking bays, or to allow any visitors to do so. This has happened in the past when visitors parked in Mr Kanter's bays. It was in breach of the rule then and would be in breach of the rule if it happened in the future. Parking by Milroy Investments or its visitors for extended periods in the driveway, and parking or standing or working on vehicles in the area in front of the roller doors in such a way as to block Mr Kanter's access to his factory or his parking bays was and would be in breach of rule 3.2 (b). Standing for short periods to load and unload, as long as vehicles stood as close as possible to the Milroy Investment parking bays would not, in my view, necessarily obstruct Mr Kanter's access, and so would not be in breach of 3.2 (b). It would, however, be in breach of rule 3.2 (c), which permits no standing or parking on the common area unless it has been specifically designated a parking area.[10]

Rule 5.1 Behaviour of owners, occupiers and invitees on common property

I find that there have been breaches of rule 5.1 by both parties. It is not the role of Mr Kanter to police the rules of the owners corporation unless he has the authorisation of the owners corporation to do so. Under section 4(1) of the Owners Corporations Act an owners corporation has the function of managing and administering common property. Under section 11 an owners corporation may by instrument delegate this and other functions to various entities, including a manager, or an individual lot owner. This owners corporation has a manager. It may have delegated the function of managing the common property to the manager, though I was shown no evidence of this. There was no evidence that the owners corporation had delegated this function to Mr Kanter. It is therefore not Mr Kanter's job to manage or administer the common property. He therefore had no authority to order people off the property, and so no basis upon which to actively interfere with the activities of visitors to Milroy Investments. On the other hand, Mr and Mrs Vantwest act in breach of the rules if they abuse or insult Mr Kanter.[11]

Rule 1.1 Health, safety and security of lot owners, occupiers of lots and others

Mr Kanter submitted that Milroy Investments used their lot in such a way as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot. I do not find this to be the case. I was not satisfied that there was anything inherently dangerous in the way in which Milroy Investments used their lot. It was different from the way in which Mr Kanter used his, because the nature of the two businesses was very different. I was not satisfied on the balance of probabilities that the use caused a hazard to any person.[12]

Rule 3.1 Use of common property

Mr Kanter submitted that Milroy Investments obstructed the lawful use and enjoyment of the common property and were therefore in breach of rule 3.1. The use by Milroy Investments complained of by Mr Kanter is that of vehicular parking and standing, and so it is covered by rule 3.2 (b) discussed extensively above. I therefore make no separate findings about rule 3.1.[13]

1. In my view, the breaches by the Respondent of the Model Rules which were accepted by Member Nihill were apparent, to an even greater extent, in the evidence presented by the Applicant in the current proceeding.
2. Member Nihill declined to impose a penalty on the Respondent for the identified breaches of the Rules, by reason that she accepted that, at that time, both parties held a genuine belief that they were not in breach of the Rules.[14] However, the Respondent was effectively placed upon notice, by the findings made in the Tribunal's Decision of 1 October 2011, as to the application of the Model Rules and their implications for the Respondent's activities.
3. Following the Order made on 1 October 2011, the Applicant made further application to the Tribunal alleging a breach of the Order and of Rule 3.2.
4. More specifically:
   • (a) The Applicant alleged that customers of the Respondent had parked in his parking bays on two occasions since the previous hearing. Mrs Vantwest acknowledged that this had occurred once but she maintained a constant watch over the outside of the factories so that she could immediately deal with any driver who is causing inconvenience to the Applicant. The Tribunal found that the Respondent was doing everything in its power to ensure that there was no breach of Rule 3.2(a);[15]
   • (b) The Applicant again alleged that vehicles were parked or permitted to be parked on the common property in such a way as to prevent his access to his parking bays, in breach of Rule 3.2(b). The Tribunal found, upon the evidence presented, that there was no occasion when such obstruction had occurred for any longer than the most fleeting period, during which period Mr and Mrs Vantwest took immediate steps to rectify the situation;[16] and
   • (c) The Applicant again alleged breach of Rule 3.2(c) to the effect that the use by the Respondent of the common area in front of its roller door adversely affected the manner in which he can operate his business, by reason that he does not ask customers or suppliers to come to his factory and instead must make deliveries himself. The Tribunal found, upon the evidence presented, that the Applicant had ample room to drive in and out of his parking bays. The Tribunal was not satisfied that the parking of vehicles of the Respondent and its customers on the common property obstructed or disrupted the Applicant's business. The Tribunal also accepted the evidence of Mrs Vantwest as to the manner in which they had to conduct their business.
5. Following a hearing on 16 March 2012, the Tribunal dismissed the application, making the following findings:[17]

1. There has been a significant reduction since the last hearing in the extent to which the common area and the parking areas have been used by Milroy Investments in breach of Rule 3.2; 2. some of the use to which Milroy Investments put the common area does not amount to a breach of Rule 3.2;

1. some of the use to which Milroy Investments put the common area does amount to a breach of Rule 3.2. For reasons set out below I decline to exercise the discretion that I have under section 166 of the Owners Corporation Act 2010 to impose a penalty not exceeding $250.00.
2. In my view, the quality and quantity of evidence presented by the Applicant in the current proceeding has led to significantly different findings, as detailed below.

1. The current proceeding follows two applications made by the Applicant, each dated 29 July 2014, namely:
   • (a) An application for Committal for Contempt, accompanied by a Statement of Charges, supporting affidavit dated 30 July 2014 and extensive exhibits; and
   • (b) An application which sets out various orders sought consequent upon the above application, including an order pursuant to s 122 of the VCAT Act with respect to the Orders made on 1 October 2011; and an application for indemnity costs.
2. The Applicant subsequently filed:
   • (a) A supplementary statement dated 26 September 2014;
   • (b) Further affidavits, sworn 10 October 2014 and accompanying photographic exhibits; 11 October 2014; 21 October 2014 and accompanying exhibits; and 18 November 2014 and accompanying exhibits; and
   • (c) A response to the Respondent's witness statements dated 14 October 2014.
3. The Applicant seeks an order that the Respondent be punished for contempt of the Tribunal pursuant to s 137 of the VCAT Act. Specifically, the Applicant alleges that the Respondent has failed to comply with the Orders of the Tribunal made 1 October 2011 by committing continuing breaches of certain Rules of the Model Rules, namely: Rule 3.1, Rule 3.2(b), Rule 3.2(c), Rule 5.1 and Rule 5.2. In addition, since the Orders of the Tribunal on 24 April 2012, the Applicant alleges that:
   • (a) On about 22 April 2013, the Respondent caused a sign to be erected on the exterior of its factory, [18] set out below, which purported to limit the Applicant's use of the common property;
   • (b) On about 22 November 2013, the Respondent caused a sign to be erected on the exterior of the factory, [19] set out below, which purported to advise its customers about alleged contact made by the Applicant to its customers; and
   • (c) On 5 June 2014 and 14 June 2014, the Applicant called police to attend his factory premises because of the alleged behaviour of customers of the Respondent or the Vantwests.

1. As indicated above, the Respondent was granted leave to file material in reply to the Applicant's applications, which took the form of two applications namely:
   • (a) a Counterclaim dated 16 September 2014; and
   • (b) An application for various orders consequent upon the counterclaim; an order pursuant to s 122 of the VCAT Act with respect to the Orders made on 1 October 2011; and an application for indemnity costs.
2. The applications were accompanied by an affidavit of Debbie Vantwest, which purports to be in support of an application seeking enforcement orders against the Applicant for failure to comply with VCAT Orders made on 1 October 2011; together with statutory declarations of proposed witnesses; responses by Debbie Vantwest dated 18 September 2014 and 29 September 2014 to the affidavit of Michael Kanter and various photographic evidence.
3. The Respondent was subsequently permitted to file further photographic evidence in the form of still photos and video clips.

1. In addition to the documents referred to above, the Applicant and Mr and Mrs Vantwest each gave oral evidence and each made oral and written final submissions.
2. The Tribunal acknowledges that notwithstanding that the Applicant and the Vantwests appeared as litigants in person, they had each compiled comprehensive documented evidence to support their case, including background material and extensive still photographs and video clips.
3. The Tribunal further acknowledges that, notwithstanding the significant acrimony displayed between the parties and particularly apparent in many audio-visual exhibits, their behaviour toward the Tribunal was at all times respectful and consistent with a genuine desire to present their case in a comprehensive and frank manner.

1. The Applicant emphasised that the current application to the Tribunal was only made after he had exhausted alternative avenues. I accept the Applicant's proposition having regard to his following evidence:
   • (a) Subsequent to the Tribunal hearing in April 2012, the Applicant applied to the Dispute Settlement Centre of Victoria in October 2012;[20] and applied to Small Business Victoria on about 30 July 2013[21] for mediation of the continuing disputes between the parties. The Vantwests declined the invitation to participate in both instances;
   • (b) He has made various complaints to the Owners Corporation. However, meetings of the Owners Corporation are attended by three members only, including the Vantwests and the owner of Unit 2 who supports the Vantwests in all matters;
   • (c) Police have attended the factory premises of the parties on numerous occasions following altercations either with customers of the Respondent or the Vantwests or their sons. While one customer has been prosecuted for assault of the Applicant, the police otherwise treat the ongoing dispute between the parties as a civil dispute; and
   • (d) Prior attempts at mediation have failed to produce any lasting resolution.
2. The Applicant asserted to the effect that the Vantwests have been uncooperative towards him from the outset. In particular:
   • (a) In about March 2007, he allowed the Vantwests to use his parking bays while they conducted renovations to their factory. However when, by June 2007, the Applicant asked them to stop, he was told to 'fuck off';
   • (b) In January 2008, the Applicant engaged KLM Spatial to provide a report for the Owners Corporation to clarify the ownership rights and use of the common property. In their report dated 21 January 2008, KLM clarified as follows:[22]
     1. Each of the lots 1, 2, 3 and 4 contains three (3) exclusive and privately owned parking spaces which are marked by paint on the ground.
     2. There are no shared car parking spaces in common property owned by the body corporate.
     3. The use of car parking spaces for storage of goods is prohibited by Council.
     4. The owner of a lot must not leave a motor vehicle on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot.
     5. The only common property at ground level in the subdivision is the driveway between lots 3 and 4, as marked on attached copy of SP30149 and site inspection photograph.
     6. The extent of common property is not marked on the ground, but is estimated in the attached photograph. For accurate re-establishment of this boundary a licensed surveyor may be engaged to place boundary marks.
   • (c) On 3 March 2008, the KLM Spatial report was tabled at a special meeting of the Owners Corporation, at which time the report was contested by Mr and Mrs Vantwest. In her evidence, Mrs Vantwest stated that she had not seen this report. The Applicant stated that he did not prevent or obstruct any information going to the Respondent;
   • (d) In May 2008, the Owners Corporation resolved to paint the common property with a yellow border which enclosed the painted words 'Keep Clear". The Respondent was also instructed to erect a sign within 30 days directing visitors to park in parking bays only;[23]
   • (e) In about June 2008, the Applicant alleges that Mr Vantwest and one of his sons entered the upstairs office of his factory where they proceeded to assault him and remove a camera, which was subsequently returned;
   • (f) By about mid-2009, both parties obtained mutual intervention orders against each other for 12 months, preventing photos from being taken other than from within their own premises. The Magistrate subsequently refused to extend these intervention orders;
   • (g) By early 2010, the Vantwests placed paint marks on the common property which were intended to indicate the point at which the Applicant had 6.4 metres to manoeuvre his vehicle, including his parking bay, which purported to give the Respondents use of about 2 metres of the common property. Subsequently, the Owners Corporation resolved that these markings be removed;[24]
   • (h) On 24 March 2010, the Owners Corporation also dealt with further complaints raised by the Respondent as follows:

the disputes from the owners of Lot 3 and Lot 4 can be listed into four basic issues. These were the fence on the property of Lot 4 may be against planning regulation; the Ashfield parking bays may not be approved by Council; the sign indicating parking at the Rhur Street side maybe against Council regulations; and the fire hydrant is being used for parcel deliveries for Lot 4.

The first three items are not related to Owners Corporation Rules or the Act and therefore do not constitute a valid complaint.

(i) The complaints in relation to the use of the fire hydrant was accepted and the Owners Corporation resolved that the Applicant will stop doing this;

(j) The Respondent also complained to the Council in order to get the Applicant to remove his cyclone fence, even though it was constructed on his private property; and

(k) The Vantwests have consistently told customers that there are no Tribunal Orders or Rules and they have directed customers to park on the common property.

1. Mr and Mrs Vantwest contested the allegations of assault and abuse and it is unnecessary for me to make any findings in this regard. I merely record the allegations of the Applicant to illustrate the serious and ongoing breakdown of communication between the parties from an early stage.
2. However, by mid-2008 two important developments had occurred, namely:
   • (a) The findings contained in the KLM Spatial report, which were clearly correct and consistent with the relevant Model Rules and Council regulations; and
   • (b) Resolutions of the Owners Corporation, to give effect to a demarcation of the common property and marked with the designation 'Keep Clear', indicated to the owners and their customers that the common property was not merely an extension of the owners own private property.
3. These developments should have clarified for both parties their respective rights and entitlements to the use of the private car parking bays and the use of the common property. Sadly and inexplicably, this was not to be the case.
4. By way of background and context, the Applicant gave evidence as to the following:
   • (a) His initial application to VCAT in 2008, the subsequent mediation, compulsory conference and protracted dealings with Council to give effect to an initial agreement to sub-divide the common property; and the first contempt proceeding and further compulsory conference. I acknowledge the efforts of the parties and indeed members of the Tribunal to facilitate a resolution. In my view, having regard to the manner in which each party conducts their business, the proposal to subdivide the common property was destined to fail. In particular, it is clear, even from the photographic evidence presented on behalf of the Respondent, that the whole of the common property is required by both parties for their convenient and safe access to and exit from their factory premises and parking bays;
   • (b) Photographic evidence which the Applicant alleged demonstrated that members of the Vantwest family and their customers regularly parked their vehicles on the common property, for varying but often extended periods, to enable loading and unloading of goods as well as working on vehicles. In addition, the Respondent's parking bays were shown to be fully occupied by their own vehicles and bull bars, often including the adjoining grassed area, while customers consistently use the common property to load and unload. The Applicant stated that he and his customers were in some cases prevented and in most cases obstructed from any or any safe or convenient access to his car parking bays. In addition, occasionally a large vehicle was parked across the entrance to the common property, thus obstructing any entrance by the Applicant or his customers. Police were called to attend on one such occasion on 24 June 2008. It is again unnecessary for me to make any findings about this historic evidence. Its relevance lies only in the fact that it is consistent with evidence subsequently accepted by Member Nihill, as outlined in her Reasons dated 1 October 2011 and is consistent with a continuing course of conduct by both parties, the extent to which I will clarify shortly;
   • (c) The Applicant typically attends the Post Office at approximately 5.15 pm and upon his return often cannot get back into his car space because of vehicles obstructing his passage which are parked on the common property;
   • (d) Vehicles parked on the common property are often left with the driver's door open, on the side closest to the Applicant; and
   • (e) The Applicant has frequently overheard the Vantwests telling customers that there are no VCAT Orders.
5. The Applicant attends his factory on Monday to Thursday from 8 am to about 11.30 pm; on Friday from about 8 am to 5 or 6 pm; on Saturday from 9 or 10 am to 3 or 4 pm and sometimes on Sundays. Customers attend on weekends but couriers do not. To operate his business cost effectively the Applicant requires unhindered access to and exit from his car parking bays throughout his working hours.
6. The manner in which the Respondent's business utilises the common property has caused him to change his business operation significantly and adversely, to his and his customers interests. In particular:
   • (a) Many of his customers have had to park in the street when access to his parking bays has been obstructed or made very difficult;
   • (b) He has advised many of his customers not to attend to make pickups and, as an alternative, has made these deliveries himself; such personal deliveries by him would average 8-10 per week and sometimes up to 20 per week;
   • (c) He has often had to send couriers to a nearby business because of difficulties with access;
   • (d) Most of his couriers only need to park for one to two minutes and then quickly leave, however there have been occasions when the driveway was blocked altogether and more frequently access to his car parking bays was obstructed;
   • (e) Truck deliveries may take about five minutes as typically six 30 kg boxes will be unloaded;
   • (f) Courier vans must currently park in Ruhr Street from where they are unloaded, which is inconvenient and time consuming; the Applicant would prefer to have these vans to be parked in his parking bays and be unloaded and loaded from this location; the Applicant's factory floor area is occupied by machinery and therefore cannot accommodate trucks for deliveries;
   • (g) Contrary to the Respondent's assertions, the Applicant does attend on public holidays and Saturdays, when he comes and goes, making deliveries;
   • (h) The Applicant should be getting weekly truck deliveries from Queensland, instead of arranging one every six weeks containing six times the quantity of goods;
   • (i) On average he estimates that the common property is utilised by Respondent's vehicles [including its customers] at least 5 to 6 times per day; some vehicles will remain on the common property for up to 45 minutes and sometimes longer; the Respondent's vehicles have also been washed while parked on the common property, not limited to a Sunday as alleged by the Vantwests, when the vehicle remains for an extended period; and
   • (j) He wishes to sell stationery items but cannot do so because of the difficulties accommodating the requisite number of pickups.
7. The Applicant could not quantify the impact upon his business as there have also been unrelated economic impacts. However, the growth of his business has been affected: he survives by putting in extraordinary hours; he has been unable to pursue certain business opportunities; he has had to stop certain services which require urgent attention, because of the unpredictability of access to his parking bays; and if customers were able to attend personally to make pickups this would often lead to other business.
8. The current traffic to and from the Applicant's factory is as follows:
   • (a) A courier will need to park in his parking bay often daily and at least every second day and mostly before 9 am;
   • (b) The Applicant makes deliveries daily to most of his customers;
   • (c) Another courier will attend three times per day, around 9 am, 1 pm and 3 pm;
   • (d) He receives truck deliveries from Queensland; and
   • (e) The Applicant needs to attend the Post Office for Express overnight deliveries, but he also needs to attend the Post Office at will, any time during the day, depending upon print runs. These Post Office attendances have proven to be extremely problematic as his access to his parking bay, upon return, is frequently obstructed.
9. The Applicant has told customers of the Respondent:
   • (a) There are VCAT Orders and Model Rules; and
   • (b) When they are being recorded, and does not hide his recording equipment.
10. Under cross-examination, the Applicant agreed that:
    • (a) He had advised a number of drivers that they are not permitted to park on the common property;
    • (b) He agreed that the Vantwests did not come onto his property to abuse him but did so from within their property or from the half of the common property closest to their property; and
    • (c) The sign 'no parking within yellow lines' on his roller door was placed there at the suggestion of police. He agreed that it had not been approved by a meeting of the Owners Corporation.
11. During the period when mutual intervention orders were in place both parties were prohibited from taking photos otherwise than from within their respective factories. This placed a significant constraint upon the Applicant demonstrating the precise location of vehicles when parked wholly within the common property. Consequently, when he was not subject to such a constraint he endeavoured to take photos from the street in order to give a better perspective.
12. The Applicant asserts that the Respondent should be providing to its customers the same facility for car parking in its parking bays as the Applicant does for his customers. In the past, the Applicant's trucks used to park in his parking bays and he would park on the adjoining gravel area. His roller door used to be open every day and couriers would drive in. He closed his roller door about six years ago to avoid the Vantwests and their customers coming into his factory to abuse him. The Applicant would prefer to have his roller door raised with shade cloth installed to allow a breeze to pass through.
13. I am satisfied that the Applicant provided credible and compelling evidence that as a result of the activities of the Respondent, as detailed below, he has suffered significant disruption to his business and has been forced to modify his business operations, including the manner in which he deals with his customers.

1. The photographic record compiled by the Applicant includes hundreds of still photographs and multiple video clips. The photography has been taken from up to 7 cameras installed on the exterior and interior of the Applicant's premises as well as still and video photography taken manually by the Applicant. In many instances, the Applicant has endeavoured to document the same kind of event, multiple times per day or on multiple days and over many months in order to show that it is not isolated but a recurrent event. The Applicant has also taken multiple photographs at different times of the day on multiple days and over many months in order to demonstrate, for instance, that the Respondent's parking bays and the adjoining grassed area are usually occupied all day by vehicles belonging to the Respondent or its equipment.
2. The Applicant has also taken audio-visual and sometimes just audio recordings of members of the Vantwest family and some of their customers in order to demonstrate their behaviour and verbal interaction.
3. Following is a small sampling of the Applicant's record which principally focuses upon items which he presented at the hearing. In addition, I have examined the remaining tendered photos which demonstrate similar occurrences.
4. In many instances, Mr and Mrs Vantwest relied upon the same or similar events which they had photographed, either manually or from one of their fixed point video cameras. In each case the parties placed a different interpretation upon the displayed event. In the case of the Applicant, the event demonstrated a particular breach of a Model Rule. In the case of the Vantwests, the event demonstrated continuing harassment and intrusive behaviour toward them and their customers.
5. On 4 May 2012, a long truck is parked on the Respondent's property which is usually parked on the common property. The Applicant says that this photo demonstrates that even large vehicles can be accommodated on the Respondent's private property located between its designated parking bays and the common property. I agree.
6. On 20 June 2012, at 14.29, a tow truck is parked within the Respondent's parking bay, indicating that there is ample space to do so. I agree.
7. On 3 August 2012, at 12.08 pm, a truck is parked within the Respondent's parking bay extending into the private property but not into the common property. One adjoining bay is empty with the third bay filled with bull bars. This photo and many similar photos demonstrate that the Respondent's customers can and do use the parking bays, if made available to them.
8. On 27 November 2012, photos depict:
   • (a) At 9.29, a utility being loaded by forklift in the parking bay [Mrs Vantwest's car is temporally placed on the street while this takes place];
   • (b) By 9.35 the parking bays are now full;
   • (c) At 11.44 a tray truck is parked on the common property where Mr Vantwest inspects it for approximately 11 minutes;
   • (d) At 12.58 a large truck initially parked in the street is then driven into the factory where it remains at least 30 minutes;
   • (e) Between 13.15 and 13.30 a utility is parked on the common property without anything apparently being done to it;
   • (f) At 14.00 a very large truck is being unloaded in the street; and
   • (g) At 15.15 a truck is left on the common property for approximately 11 minutes. The driver entered the Applicant's factory after the Applicant had taken photos. However, he cannot get past the secure lobby area.
9. On 28 November 2012 at 12.43, Mr Vantwest's vehicle is moved from the parking bay and parked nearly wholly within the common property from where it is loaded by hand.
10. A video shows Mr Vantwest's vehicle parked on common property for approximately 25 minutes while loaded by hand. One parking bay is vacant. Mr Vantwest yells obscenities at the Applicant who is not heard to say anything.
11. On 30 November 2012, photos taken from early morning until late afternoon demonstrate:
    • (a) The Respondent's parking bays are shown to be full with vehicles and bull bars together with two of the Respondent's vehicles on the lawn and in the street;
    • (b) A tray truck parked across the common property and part of the Respondent's property which is being loaded and unloaded by a fork lift which, in the process, clearly works across the midpoint of the common property;
    • (c) Further customer vehicles are shown parked on the common property;
    • (d) Mr Vantwest's vehicle is parked wholly on the common property in front of the Respondent's roller door. A video shows Mr Vantwest reversing from the front of the roller door and then driving forward, calling out in the Applicant's direction with the following words:

Fuck off... Are you a poofter...do you want to fuck me... Take your camera and fuck off...

(e) Mr Vantwest then gets out of his car and walks toward the Applicant who immediately retreats into his factory. The Applicant's friend from across the road calls out to Mr Vantwest:

(f) Mr Vantwest then gets back into his utility and in the process of driving away, stops in front of the Applicant's premises and calls out abuse; the Applicant's friend then comes across the road. Throughout this incident the Applicant is filming but does not say anything;

(g) A short time later, Mr Vantwest returns in his utility parking it almost wholly within the common property. The Applicant again films this incident while Mr and Mrs Vantwest unload from the rear of the vehicle while also calling out abuse to the Applicant, including accusing him and his friend of being racist.

(h) Another customer vehicle is shown parked across common property and the Respondent's property while parking bays remain full;

(i) A large truck is shown driving into the factory at 15.38 where it remains until at least 16.59 while a van is also parked on the common property in front of the roller door. By 17.05 the truck appears parked on the common property where Mr Vantwest appears to be working on it for at least six minutes;

(j) After the truck leaves, Mrs Vantwest is shown driving out, using the whole area of the common property in the process. Mr Vantwest is then shown to drive away in his four-wheel-drive, reversing back over the common property and onto the area of the Applicant's private parking bay in order to drive out.

1. On 10 December 2012 at 8.48, the Applicant arrived at work to find a tow truck blocking the driveway. The Applicant could not access his own driveway so he drove through the driveway of Unit 2 and attempted to drive through the Respondent's empty parking bays to reach his own parking bays but was prevented from doing so by Mr Vantwest standing in the way. The Applicant had to wait until the tow truck was removed. This incident is demonstrated by a video taken from inside the Applicant's car.
2. Later the same day, when the Respondent's parking bays were full, a customer of the Respondent, who had been parked on the common property uses the whole area of the common property extending into the Applicant's parking bay to manoeuvre and drive out.
3. On 22 March 2013, a video and photos show the Applicant driving out [to attend the post office]; a Vantwest son is shown walking over to the Applicant's premises and upon returning the Applicant takes photographs of spit on his window.
4. On 23 March 2013, photos and video taken from early morning until late afternoon demonstrate:
   • (a) The Applicant has parked his vehicle diagonally across his parking bays because the Respondent's utility, parked across the common property, has obstructed a convenient entrance and exit to his parking bay. The Applicant shows a video he took while approaching Mr Vantwest, and stating words to the effect:

Do not park on the common property...please keep the area clear next time... You know I come and go...

(b) Mr Vantwest is heard to respond with words to the effect:

Fuck off... You have 11 metres... Racist bastard... Harassing me... I am only loading and unloading ...

(c) Photos at 9.51 am and 9.52 am show Mr Vantwest facing the Applicant with clenched fist and Mrs Vantwest taking photos; and

(d) Mr Clark's vehicle [a customer of the Respondent], is unloaded while parked on common property. When he departs, the Applicant attempts to re-park his car in his parking bay but is prevented from doing so by Mr and Mrs Vantwest and son standing in a row on the common property. When the Applicant gets out of his vehicle, Mr Vantwest calls him 'a fuckin idiot'.

1. The Applicant relies upon the behaviour demonstrated in this incident as evidence of a breach of Rules 3.2(c) and 5.1.
2. On 31 March 2013, a truck parked in the Respondent's parking bay is shown to be loaded by forklift. The Applicant also shows a photo taken on 10 July 2009 of a similar event. These and similar photos demonstrate that the Respondent can and does use its parking bays for loading and unloading.
3. On 4 April 2013, various photos are shown to depict the following:
   • (a) A large truck is driven into the Respondent's factory at 8.52 am where it remains until 12.03 pm;
   • (b) At 10.54 am, a delivery van is unloaded from the rear while parked on the common property;
   • (c) At 13.42, parking bays are full and a utility is parked on the common property, which the Applicant says could have been accommodated within the factory from which the large truck has now been removed;
   • (d) At 13.45 Mrs Vantwest takes photographs in the direction of the Applicant's factory; and
   • (e) At 13.47 a utility parks across the common property where it is loaded using a fork lift, which utilises the whole area of the common property in the process.
4. A video taken between 15.03 and 15.15 shows Jonathan Vantwest reversing a utility from the Respondent's parking bay across the full extent of common property and into the Applicant's property and then reversing back onto common property in front of the Respondent's roller door where the vehicle remains for approximately 12 minutes while it is being loaded. Jonathan and another person are shown to retrieve a bull bar from the parking bay with one hand and load into the vehicle.
5. On 9 April 2013, a photo shows Mr Vantwest loading a truck in the street with his fork lift. The Applicant has also observed a car and trailer in the street being manually loaded by up to 3 people and sometimes with mechanical aids. Bull bars are also moved on trolleys.
6. On 10 April 2013, various photos depict:
   • (a) Respondent's parking bays are full with a further four-wheel-drive vehicle parked on the adjoining grassed area;
   • (b) A four-wheel-drive vehicle is parked wholly within the common property;
   • (c) A van is parked across the common property, partly on the Respondent's property and unloaded from the rear;
   • (d) Another van is parked on the common property;
   • (e) A mobile crane is being used to load a utility which is parked in the Respondent's parking bay extending partly on to the Respondent's adjoining property; and
   • (f) Another utility is parked on the common property while there is a spare parking bay and no truck located within the factory.
7. The Applicant also took photos of a 'spy camera' fixed to a frame and a four-wheel-drive vehicle within the Respondent's parking bay and adjoining grass. While doing so, the Applicant says he was heckled and laughed at by members of the Vantwest family. The Applicant produced a video depicting Mr and Mrs Vantwest and son Jonathan in the background in which a stream of abusive language is heard to be directed toward the Applicant who in turn is heard to say words to the effect:

Mind your language... Filming is to show your behaviour... Follow the law.

1. On 12 April 2013, a large long truck is photographed on the common property at 17.10 and driven within the factory at 17.17. At the time there are no bull bars or vehicles located in the parking bays suggesting that the truck can be accommodated within the factory without removing any items.
2. On 22 April 2013, the Applicant first noticed a newly erected sign with a red vertical line which purports to indicate where customers can park on the common property. The Applicant lodged a written complaint with the chairman of the Owners Corporation on 23 April 2013 and he photographed the sign on 24 April. The manager of the Owners Corporation subsequently told the Applicant that they could not do anything about the sign.
3. On 24 April 2013, photos depict the following:
   • (a) Respondent's parking bays are full;
   • (b) At 10.50 a van is parked on the common property and partly on the Respondent's property backed up to the roller door;
   • (c) By 11 am Mr Vantwest drives his utility, which had been within the factory, across whole of the common property and parks on the grassed area adjoining the Respondent's parking bays;
   • (d) At 13.50 another van is parked almost wholly within the common property from where it is unloaded from the rear;
   • (e) At 14.03 a video shows Mrs Vantwest pointing to the line on the new sign and says:

If you don't like it find another place and get out.

(f) At 14.54 Mr Vantwest drives over the whole of the common property in order to reverse onto the grassed area;

(g) At 15.02 a small sedan is parked on the common property;

(h) At 16.16 all of the Respondent's parking bays are still full; and

(i) At 16.46 two parking bays are now free but a utility is still parked on the common property from where Jonathan removes a part by hand from the rear.

1. On 29 April 2013, at 13.05, Mr Vantwest's vehicle is parked on the common property followed by Respondent's customer Mr McLarty's vehicle at 13.05, which is then unloaded by hand. A video depicts the following rather bizarre episode. The Applicant hands Mr McLarty a copy of the Model Rules, who appears to be reading it when Mr Vantwest grabs the document, screws it up and throws it to the ground. The Applicant recovers the Rules and again hands them to Mr McLarty who places them in his cabin. Mr Vantwest removes them from inside of the utility and throws them in the direction of the Applicant. Mr McLarty is given a fresh copy of the Rules which he again places in the cabin. The Applicant returns to take photos at which time Mr McLarty approaches him with his hand up. The Applicant walks back into his factory. Further photos depict the following:
   • (a) Another utility drives onto the common property as Mr McLarty drives out. Goods are unloaded from the vehicle by hand for more than 10 minutes;
   • (b) At 13.12 another utility is parked on the common property which is again unloaded by hand;
   • (c) At 14.11 a vehicle parked in the Respondent's parking bay is loaded with a fork lift; and
   • (d) At 15.34 a utility and trailer are parked over the common property and unloaded by hand by two people.
2. On 1 May 2013, the Respondent's parking bays are full. The Respondent's customer Mr Polan's tray truck is parked over the common property, reversed up to the roller door.
3. On 8 May 2013, a large long campervan is parked within the factory and later driven out to the street.
4. On 27 May 2013, photos were taken from early morning until late afternoon which demonstrate:
   • (a) Signage displayed at the front of the factories;
   • (b) By 9.25 am the Respondent's parking bays are filled with the Respondent's vehicle and equipment and Mrs Vantwest's vehicle on adjoining grassed area;
   • (c) A courier van parked on common property from where it is loaded and unloaded from the rear;
   • (d) A large truck parked on common property for about 10 minutes and then driven inside factory for about 30 minutes;
   • (e) Respondent's parking bays remain full in the afternoon;
   • (f) Another van is parked on the common property in front of the Respondent's roller door; and
   • (g) Mrs Vantwest appears to be instructing driver where to park and to move vehicle to the left side of the red line shown on the signage, but still partly parked on common property.
5. While the Applicant was photographing the large truck, the driver is seen to manhandle the Applicant. Police were called and the driver was subsequently charged with assault. The Applicant believed that he was placed on a six month good behaviour bond.
6. On 28 May 2013, photos were shown taken from early morning until mid-afternoon which demonstrate:
   • (a) A courier van for the Applicant is parked in his parking bay;
   • (b) All parking bays of the Respondent are full with its vehicles and bull bars;
   • (c) A four-wheel-drive vehicle and trailer is parked on the common property for about 16 minutes while the trailer is unloaded and work appears to be performed on the motor vehicle engine; and
   • (d) By early afternoon, the Respondent's parking bays are full with its vehicles and bull bars and a customer's vehicle is parked on the nature strip.
7. On 29 May 2013, photos taken from early morning until late afternoon demonstrate:
   • (a) By early morning all parking bays of the Respondent are full with its vehicles and bull bars and by late afternoon the bays remain full with an additional two vehicles parked on the nature strip;
   • (b) A customer van is parked centrally on the common property from where it is unloaded, partly obstructing the Applicant's roller door; and
   • (c) A utility initially parked wholly within the common property is moved across to be halfway on common property and halfway on the Respondent's private property, where it remains for about 23 minutes.
8. On 14 June 2013, a tow truck is parked on the common property for 20 minutes while work is performed on it. The Applicant had a female customer present at the time. When she departed, the Applicant had to guide the car out while being heckled in the process. There was insufficient space to enable his customer to reverse over the common property to drive out. On the same day a customer of the Respondent parked their sedan in the Applicant's parking bay before moving it to the common property for about 10 minutes. All of the Respondent's bays were full. The Respondent also relied upon a video of this incident and the Applicant later taking photos when his customer had departed.
9. On 4 July 2013, the Applicant comes out of his factory when Mr McLarty is parked on the common property. Mr McLarty runs towards the Applicant's factory door, calling out:

Come out, I want to kick your cunt... I am going to wait for you.

1. On 10 October 2013, the Applicant said that a meeting of the Owners Corporation had been called to deal with the newly erected sign at which only he turned up. The Owners Corporation manager said there was no point continuing with the meeting. He was in possession of correspondence from Mrs Vantwest and the owner of Unit 2 'denying everything'. Upon returning to his factory after the meeting the Applicant had difficulty entering his parking bay. A video shows Chris Vantwest, a son, standing on the common property obstructing the Applicant's car and stating that he does not have to allow the Applicant past the position of the new sign. Chris is also heard to say:

Take a photo of that line... That is Council requirements... That is all the room you need to turn... You just want to touch my fuckin dick don't you...

1. Chris Vantwest continues to obstruct the Applicant's car by standing on the common property and refuses to move when asked. The Applicant was forced to manoeuvre around him and Chris walked away once the Applicant has parked his car. The Applicant contacted police.
2. On 18 October 2013:
   • (a) At 15.21 a customer of the Respondent has parked in the Applicant's parking bay. The applicant asks the driver to move and the driver refuses. Chris Vantwest was present at the time when their customer arrived; and
   • (b) At 15.27 a customer of the Respondent is parked on the Applicant's gravel area. All parking bays of the Respondent are full. The Applicant asked the driver to move. However, a truck driven out of the factory then obstructs the customer from leaving the Applicant's parking bay.
3. On 20 February 2014, a large truck with gas bottles is parked in the Respondent's parking bay.
4. On 5 March 2014, Mr Vantwest's car is parked within the factory with doors open on each side, indicating space to do so.
5. On 14 March 2014 at 12.01, the Applicant's car is parked in his first parking bay. A sedan drives from the street, across the middle of the common area and parks nose first into the Applicant's second parking bay. A customer of the Respondent then drives in from the street and reverses back onto the Respondent's grassed area. In each case the vehicles were required to traverse the whole width of the common property.
6. A video depicts the Respondent's parking bays are full. A guest of the Applicant drives his car across the common property and backs into the Applicant's parking bay, which he could not have done if there had been a vehicle parked on the common property. A customer of the Respondent then drives across the common property and reverses onto the Respondent's lawn. The Applicant stated that this is precisely what should be happening.
7. The Respondent's utility is then moved from their parking bay to the common property in front of the roller door where it is loaded or unloaded.
8. A truck is parked across the driveway and when the Applicant went out to take note of his number plate the driver ran back to the Applicant's factory and attempted to gain access.
9. On 18 March 2014 at 15.30, a large truck is parked across the driveway for at least 30 minutes. After the Applicant took its registration number, at 15.48 the driver came to the Applicant's door and banged upon it.
10. On 22 March 2014, a video taken within the Applicant's car shows the Applicant reversing into his parking bay while Mr and Mrs Vantwest and son stand within the common property, preventing the Applicant from accessing the whole of the common property.
11. On 26 March 2014, the Applicant produced a series of photographs depicting:
    • (a) Respondent's parking bays are full with their equipment and Mrs Vantwest's vehicle and Mr Vantwest's vehicle are parked on the adjoining grass;
    • (b) A four-wheel-drive vehicle and trailer is parked on the common property for at least 22 minutes while being worked on by Mr Vantwest and his customer;
    • (c) A courier van, which could easily fit into a parking bay, is parked on the common property;
    • (d) A Hunter Transport long truck is parked on the common property for at least 10 minutes which the Applicant alleges could be loaded either within the factory or in the street;
    • (e) Another long truck is parked on the common property and unloaded by hand from the rear;
    • (f) The adjoining street area is shown to be clear of cars; and
    • (g) Another large tray truck is on the common property for at least 40 minutes while Mr Vantwest appears to be working on it.
12. On 9 April 2014 at 7.45 pm, when the Respondent's parking bays were now empty, the sedan of the Respondent's guest or customer, was parked on the common property for at least 45 minutes. The Applicant typically works late into the evening
13. On 12 April 2014:
    • (a) At 11.09, a Mercedes sedan is parked wholly within the common property while only one utility is parked in the Respondent's middle car parking bay. At 11.25 the vehicle is moved to the street;
    • (b) While the sedan is still parked on the common property the Applicant comes out to take measurements and then has a conversation with the driver. A video shows Mr Vantwest attending, and saying words to the Applicant as follows:

Racist bastard...fuck off...fuckin idiot'...go inside... .Take me to the fuckin court... You are harassing me...

(c) The Applicant responds in terms of the Model Rules and says that he cannot get into his own parking bay because of the sedan. Once the sedan has been moved onto the street, the Applicant is able to move his car, which had been angled across his parking bays, into one parking bay. While doing so Mr Vantwest is again heard to call out abuse;

(d) Another photo shows a very large tall truck wholly parked within the factory; and

(e) A Council officer attended to advise the Applicant that Mrs Vantwest has complained about his cyclone fence which also displays signs clearly indicating that parking is for his customers.

1. On 15 April 2014, a vehicle is parked on the common property for at least 44 minutes. The following audio is heard:

1. On 16 April 2014, a photo shows Mr Vantwest's vehicle parked within his factory, with space either side.
2. On 5 May 2014, a photo depicts the utility of Respondent's customer wholly parked within the Respondent's property adjoining its car parking bays. The Applicant states that this is what should be happening if there are no bays vacant.
3. On 14 June 2014, [Saturday] the Applicant presented photos from various angles which showed a car and trailer initially parked at an angle across the common property and the Respondent's private property, which was then straightened up so that the right-hand edge of the vehicle was aligned with the red line on the sign. In this latter position the vehicle and trailer still occupied part of the common property where it remained for approximately 30 minutes.
4. On this occasion the Applicant was expecting a visitor and went out to ask whether the Respondent's customer's vehicle could be moved. A video of this encounter shows the customer and Mr Vantwest at the trailer talking. Mr Vantwest is then seen and heard to approach the Applicant and yell loudly and repeatedly words to the effect:

1. Mr Vantwest then appears to spit in the Applicant's face once or twice and Mrs Vantwest then appears to be taking photos. The Applicant then says words to the effect, in a civil tone:

Milroy, you know you should not be working on vehicles... Asking you to remove this vehicle... You are not allowed to park on the common property... It should not be parked on the common property... This is not your property... Don't spit your dirty spit.

1. The Applicant did not speak directly to the driver. He returned to his factory and called police. When police attended, after speaking to the Vantwests they told the Applicant that they were told there were no orders and that the Applicant was provoking the Vantwests. When police ascertained that there was a current application for contempt before the Tribunal, they declined to act upon his complaint.
2. The Applicant relies upon the behaviour demonstrated in this incident as evidence of a breach of Rules 3.2(c) and 5.1. The Applicant has called police to attend the factories approximately 15 to 20 times over 12 months for a similar range of insulting conduct.
3. On 18 June 2014, photos or video depict the following:
   • (a) Mr Vantwest's utility is initially parked in the street and then moved to the common property where Mr Vantwest loads it by hand with another person. There is a vacant parking bay at the time;
   • (b) A video shows another utility parked for approximately 15 minutes on the common property where it is also loaded by hand. There is a vacant parking bay at the time. At the same time a customer of the Applicant drives in and has to park on an angle across two parking bays, because of limited access. Mr Vantwest takes photos. The Applicant instructs his customer to go inside while he takes photos. Mr Vantwest is heard to say, in the presence of his wife and son Chris:

Two dumb asses ... Don't know how to drive... [Laughter]

(c) Another utility arrives immediately following and again parks over the common property, although there is still a free car parking bay;

(d) At 14.48 a utility truck initially parks in the Respondent's parking bay and then moves to park wholly within the common property after Mr Vantwest speaks to him. A fork lift is then driven over the whole common property to load the utility. The utility remains for approximately 10 minutes. A bull bar is removed from the utility and placed in the only vacant parking bay;

(e) At 16.03 a large truck is parked in the Applicant's parking bay while the driver goes into the Respondent's factory. The driver then moves the truck onto the common property where it is inspected by Mr Vantwest for approximately 10 minutes. Street parking is available at this time; and

(f) At 16.17 a large van is parked initially wholly within the common property and then moved to the left but still remains partly on the common property from where it is unloaded by hand by Mr Vantwest. Street parking is still available.

1. On 28 June 2014 at 15.15, a large truck is parked over more than half the width of the common property, where it remains for at least 15 minutes obstructing any access by the Applicant's drivers. All of the Respondent's parking bays are full.
2. On 11 July 2014 and other dates, are photos of a large truck being inspected by Mr Vantwest in the street.
3. On 25 July 2014 at 10.05, Mr Vantwest is shown to be reversing from his parking bay across the whole common property area and into part of the Applicant's parking bay before driving forward and parking on his grassed area.
4. On 28 June 2014, photos depict:
   • (a) The Respondent's utility parked across the common property where it is unloaded by one person by hand and is obstructing the Applicant's car from backing out of his car space;
   • (b) A large truck parked wholly within the common property and then moved to the left, but still substantially on the common property, and unloaded from the rear by hand; and
   • (c) Another utility is parked on the common property and loaded by hand. All parking bays are full but there is street parking available.
5. On 18 July 2014, photos and audio depict:
   • (a) At 10.41 a customer of the Respondent is parked in the Applicant's parking bay. When the Applicant asked the customer to leave, Mr Vantwest is heard to say:

(b) Later the same day another customer of the Respondent is parked in the Applicant's parking bay and when asked by the Applicant to move, he immediately did so and apologised; Mrs Vantwest approaches the Applicant and tells him to 'nick off';

(c) In an audio of a later conversation, the Applicant is heard to say to Mr Vantwest:

fuck off... Leave us alone... Customer will fuck you one day because you are annoying them so much

you can provide a parking space [presumably referring to their previous customer]

1. On 8 August 2014, photos depict:
   • (a) At 9.26 to 9.33, Mr Polan's truck parked on an angle across the common property being loaded with a crane from the side which was wholly within the common property. The Respondent's parking bays are full;
   • (b) At 12.26, a customer of the Applicant reverses his vehicle into his parking bay utilising the whole common property to do so; and
   • (c) At 16.21, a guest of the Applicant is parked on his gravel. When he attempts to leave, Mr Vantwest's utility is parked on the common property immediately in front. It is moved partly into the Respondent's parking bay while still extending into the common property. The Applicant's customer tries to reverse his vehicle out of the parked position but has to manoeuvre twice to do so. Mr Vantwest subsequently removes an item from the rear of the utility by hand.
2. On 12 August 2014, photos depict:
   • (a) At 12.11, a large truck parked on the common property for at least 18 minutes while Mr Vantwest works on it; parking bays are full but there is street parking available;
   • (b) At 13.16, Mr Vantwest is parked on the common property although there is a vacant parking bay; and
   • (c) Over 12 and 13 August, the same equipment of the Respondent appears in a parking bay.
3. On 13 August 2014, Mr Vantwest moves his utility from the grassed area to the common property from where he loads small items by hand. Over the day his utility is shown to be parked multiple times on the common property and then returned to the grassed area.
4. On 14 August 2014, a video shows the Respondent's utility parked on the common property for about 12 minutes while an item is untied by hand and carried from its roof into the factory after which the utility is driven over the whole of the common property and part of the Applicant's property in order for it to be reversed onto the grassed area. While the Applicant was taking the video, a Vantwest son is heard to say:

1. On 18 August 2014, photos depict the following:
   • (a) At 12.53, a truck with a long tray is parked across the entrance clearly obstructing any access to the common property or the Applicant's parking bays;
   • (b) At 14.42, a large truck with cement mixer is parked on the centre of the common property. It is subsequently moved to the left but the cement mixer is still largely within the common property. Mr Vantwest appears to be working on the truck which finally departs at 15.00.
2. On 8 September 2014, a large cement mixer is parked on the common property for approximately 18 minutes and then driven into the factory. The Applicant states that sometimes work is performed in the factory and sometimes outside on the common property.
3. At 11.46, a video shows a utility driving out of the Respondent's parking bay across the whole width of the common property to re-position itself on the common property in front of the Respondent's roller door.
4. On 18 September 2014, photos depict:
   • (a) At 9.01, Mr Vantwest drives his utility from the street via the right-hand side of the common property to swing into the parking bay. By 9.30 all bays are full;
   • (b) At 11.57, a large truck with gas cylinders is parked on the common property for at least five minutes;
   • (c) A car is parked on the common property for at least 38 minutes until 14.07; all parking bays are full but there is street parking available;
   • (d) At 14.01, a customer of the Applicant is parked in his parking bays on an angle; the customer subsequently waits while Mr Vantwest removed his utility from the common property to the grassed area so that he could depart; a video shows the customer departing at 14.27 and Mr Vantwest standing on the yellow line of the common property, preventing the driver from reversing over the yellow line while calling out:

(e) From 14.04, photos show Mrs Vantwest taking photos of the Applicant's customer's cars parked in his parking bays;

(f) Mr Vantwest variously moving his utility from a parking bay to the grassed area [14.07] and then into the factory [14.17] and then onto grass again [14.28] and then back into a parking bay, when an item is moved into the factory [14.51]; an item being brought out to Mr Vantwest's car parked in the parking bay [14.14]; Mr and Mrs Vantwest walk onto the Applicant's private property [14.29]; Mr Vantwest's utility again moved on to grassed area and items moved from factory onto the parking bay;

(g) At 14.53, a large truck is driven inside the factory, departing at 15.01 when items are moved back into factory from a parking bay; a vehicle arrives and parks on the common property for at least 11 minutes while a parking bay remains vacant and there is also street parking available;

(h) At 16.45, Mr Vantwest parks on the common property where he loads the vehicle while there is still one parking bay vacant; and

(i) At 17.24, a large truck is parked across the driveway.

1. On 19 October 2014 at 8.23, the Applicant drives his sedan from the street to demonstrate two methods of parking in his first parking bay (being the one closest to his factory):
   • (a) First, he drives over the middle of the common property and parks nose first into his bay;
   • (b) Secondly, he drives over the middle of the common property and reverses into is parking bay.
2. In each case, I am satisfied that the Applicant clearly requires the whole area of the common property to effect the manoeuvre.
3. On 21 October 2014 at 12.08, a van and trailer belonging to the owner of unit 2 is parked on the common property. Both the owner and Mr Vantwest appear in the photos standing by the trailer. The vehicle is finally driven out at 12.37.
4. On 10 November 2014 at 17.03, a customer of the Respondent is parked in the Applicant's parking bay. All of the Respondent's parking bays are full. The Applicant asked the driver to move which he did so immediately.
5. On 12 November 2014, the Applicant showed photos he had taken at the Dandenong shopping centre and other public car parks on 12 October, 5 November and 7 November 2014 which purport to show the space needed for a vehicle to enter and exit a car space, which is equivalent to the area comprised in the common property.
6. The Applicant showed multiple photos of the Respondent's vehicles and other large trucks where they have utilised the whole of the common property to enter or exit their car spaces and in many instances have extended beyond the common property into the property of the Applicant.
7. The Applicant gave further evidence that:
   • (a) On a typical day the Respondent's bull bars will be taken from the factory early morning, placed in one and sometimes two parking bays where they remain all day and are returned again to the factory late afternoon; and
   • (b) If the Respondent marked its parking bays to its title boundary there would be an additional 0.7 metres which would give sufficient space between the marked private parking bays and the common property for customer vehicles to be parked on the Respondent's private property

1. In addition to the above photos and videos presented by the Applicant to the Tribunal at the hearing, I also take note of:
   • (a) Tables and approximately 380 photos annexed to the Applicant's affidavit dated 22 September 2014 in which the Applicant has attempted to correlate each picture with an alleged breach of Rule;
   • (b) The 202 photos annexed to the Applicant's Affidavit in response dated 10 October 2014;
   • (c) Various photos taken on 27, 29 September 2014; 1, 3, 6, 8, 9, 10, 14, and 21, October 2014 annexed to the Applicant's Affidavit in response dated 21 October 2014; and
   • (d) Three tendered DVD discs containing hundreds of photos and multiple videos.
2. The tendered DVD's include groupings of photographs and videos which I am satisfied demonstrate the following:
   • (a) Multiple large vehicles and vehicles with trailers which were parked in one of the Respondent's parking bays and often protruding into the Respondent's private property beyond the designated bay but not into the common property, including: a sedan and trailer;[25] a utility and large trailer;[26] a large motor home;[27] a station wagon and trailer;[28] and a large tray truck with gas bottles; a large truck;[29]
   • (b) Multiple vehicles which were driven into the Respondent's factory in 2013 and 2014 for varying periods, including: a large motor home; a cement mixer; a four wheel drive vehicle; a sedan motor vehicle; and large trucks;
   • (c) Various large trucks parked in the street, usually adjoining the entrance on the Respondent's side, where they were inspected.[30]
   • (d) Extensive photographs during 2013 and 2014 showing various size vehicles, including large trucks and trailers being loaded or unloaded while parked in a parking bay of the Respondent, either manually or using a fork lift or mobile crane device or hoist; and accessed either from the side or the rear of the vehicle;
   • (e) Extensive photographs of large trucks parked in the street where they are loaded or unloaded either manually or by using a fork lift and accessed either from the rear or the side of the vehicle, for instance on 5 April 2012 at 15.15, a long tray truck is parked adjoining the entrance and loaded from the nature strip on the Respondent's side;
   • (f) About six further photographs during 2013 and 2014 showing vehicles parked in the street where they are inspected, for instance on 19 November 2013 at 9.35, a bull bar is being fitted to a vehicle in the street;
   • (g) Hundreds of photographs, including video clips, over the period 2012 to November 2014 showing a large range of vehicles parked wholly within the common property or substantially over the common property; and in some instances partly blocking the driveway entrance, from where they were loaded, unloaded, both manually and by use of the fork lift, trolley or hoist; and inspected and worked on. In many instances a door of the driver's door was left open and the loading or unloading by mechanical devices utilised a large part of the width of the remaining common property. Vehicles typically remained parked for at least 5 minutes and often 10 to 20 minutes or more;
   • (h) Instances of a customer of Respondent parked alongside its parking bays wholly within the Respondent's private property;
   • (i) Large trucks parked across the driveway entrance, one for more than 22 minutes, where they were inspected;[31]
   • (j) Multiple photographs of the Respondent's customers appearing to confront the Applicant as he is taking photographs from the common property entrance; and
   • (k) Multiple photographs during 2012 and 2013 showing: Jonathan riding his bike over the Applicant's private property; and stones having been scattered over his parking bay.

1. Over the years there has been a proliferation of signs erected on the face of the factory building, on stand-alone boards and/or in the entrance to the Respondent's factory. In this context I make no comment upon any sign which merely seeks to describe the nature of business conducted. I will deal with each sign in turn:[32]

1. The above sign appears on a self-supporting stand in front of the left-hand side of the Applicant's roller door. The Applicant advised the manager of the Owners Corporation on 11 October 2010 that he had erected this sign. Given that there is no evidence that the Applicant or his customers park on the common property, this sign could be said to be effective to that extent. However, for the area to the left of the dividing wall between the factories, the sign has clearly been ignored by members of the Vantwest family and their customers.
2. In my view, this sign is appropriate and is consistent with the Model Rules.

1. The above sign appears on the factory wall immediately to the left of the dividing wall to the two factories under the words 'Image Bull Bars' and a telephone number. The Respondent's private parking bays are usually not available for customer car parking. Accordingly, this sign was rendered ineffective. Furthermore, on the occasions when the Respondent's car parking bays were available, customers continued to park wholly or partly on the common property immediately in front of the Respondent's roller door.
2. In my view, the Respondent has failed or refused to facilitate parking by its customers in its parking bays.
3. A further blue sign with the heading 'Image Bullbars' states underneath:

All deliveries and pickups in front of roller door Do not park in Factory 4 premises

1. This sign was placed by the Respondent on 19 October 2010. It clearly directs customers to park on the common property and is inconsistent with the Keep Clear words painted on the pavement of the common property.
2. In my view, this sign contravenes the Model Rules and should be removed.
3. On about 22 April 2013, the Respondent caused a sign to be erected on the exterior of Factory 4 which stated as follows:[33]

From Factory 4 to the red line is 11.5 metres. Council requirements for turning circle is 6.4 mtrs from front of parking Bay.

1. The above sign is bordered on the left-hand side by a wide red vertical line which is the line up to which the Vantwests would direct their customers to park.
2. In my view, this sign is misleading and purports to invoke Council requirements inappropriately. The reliance placed upon the red line by the Vantwests is misconceived and plainly wrong. This sign should be removed.
3. I note that the Minutes of Dispute Resolution Meeting Of the Owners Corporation dated 24 March 2010 record as follows:

Debbie agreed that the marking of the 6.4 m mark was done without the owners corporations approval.

It was resolved that Debbie will organise to remove the markings by the end of March 2010.

Much discussion was had about the position of vehicles visiting the business in Lot 3 and their placement on the common property. The discussion indicated that the use of common property for the benefit of a single unit is against the rules. The issue of common sense and logic being applied was discussed at length. Michael indicated that he asks delivery companies to instruct their drivers to Park within the parking Bay when they deliver or pick up. Debbie indicated that they will also ask the regular people to be more careful of where they park.

It was resolved that the business in lot three will provide a parking Bay for delivery vehicles to use when delivering to their business that when a vehicle is not appropriately parked the driver will be asked to move the vehicle to a more suitable spot and that both parties will be more aware of the other's needs for access and tolerate infrequent indiscretions without complaint.

1. The Respondent has clearly failed to comply with the above resolution.
2. On about 22 November 2013, the Respondent caused a sign to be erected on the exterior of its Factory which stated as follows:[34]

We have been informed by quite a few of our customers that Michael Kanter of Factory 4 is ringing them up and telling them not to come to the premises.

If he rings you or the office stating that vehicles are not allowed to deliver or pick up from the front of our roller door due to a VCAT order, or he refers to the Model Rules, please disregard those claims as Michael Kanter has no right to interfere in or disrupt our business. Michael Kanters application to VCAT against us for breach of the Model Rules re-parking was dismissed in May 2012.

Michael Kanter has not been appointed to police the common property, nor does he solely own it.

1. I note that during the course of the hearing no customer of the Respondent gave evidence that they had been telephoned by the Applicant telling them not to come to the premises.
2. In my view, the above sign is misleading, inappropriate and potentially provocative. This sign should be removed.
3. By photo taken 23 October 2014, an extract of Reasons for Decision of the Tribunal dated 24 April 2012 is displayed.
4. As indicated during the hearing, the above display of Reasons or an extract thereof for any Tribunal Decision is unauthorised. The Respondent has now removed the display, as directed.

1. Mrs Vantwest referred to the following photos and videos:
   • (a) On 2 March 2012, a signage board on wheels is in front of the Respondent's roller door. It is blown over in the direction of the Applicant's premises and appears to hit the Applicant's motor car. The Applicant pushes the sign back to the Respondent's roller door entrance where it falls over; Mrs Vantwest alleges it was intentionally pushed over by the Applicant, which he denies. The video of this incident is at best equivocal;
   • (b) On 6 March 2013 at 10.45, a vehicle stops on the common property where it is manually unloaded; the Applicant comes out to film from the street and then stands at his doorway taking further pictures;
   • (c) On 13 March 2014, the Applicant films a utility being taken from the Respondent's parking bay into the factory, which leads to a verbal altercation between the parties;
   • (d) On 22 March 2013 at 9.45, a vehicle is driven onto the common property and the Applicant drives into his car parking bay; the Applicant takes photos from the street, from the side and the front of the vehicle; Mr Vantwest tells the Applicant to get away from the vehicle and Mrs Vantwest tells him to 'fuck off'; the Applicant continues to take photos and there is further abuse from Mr Vantwest;
   • (e) On the same day from a short video, Mrs Vantwest is heard to say:

You can't even reverse your car, where did you get your licence. [The Applicant is heard to refer to the Rules]

(f) On 23 March 2013 at 11.58, a utility is reversed across the common property, near the driveway; the Applicant drives into his parking bay. Mrs Vantwest says that there was space for the Applicant to reverse back into his bay. The Applicant says that he parked across his bays on this occasion as it was easier for him to do so rather than to ascertain whether there was enough space. He later moved his vehicle to reverse in and had to use most of common property to do so;

(g) On 10 April 2013 at 11.07, the Respondent had installed cameras on a bar within their parking bay [to film the Applicant giving customers Model Rules] which the Applicant came out to photograph. An argument occurs off camera. The Applicant returned to take further photographs of the Vantwests when they came out to the parking bay area which led to a further verbal altercation. Mrs Vantwest asserts that this conduct amounts to undue interference and agreed that she called the Applicant an idiot;

(h) On 12 April 2013 at 12.08, the Applicant comes out to take pictures of the camera on the stand in the Respondent's parking bay when no-one else is around;

(i) On 17 April 2013 at 1.41, the Applicant comes out to his car to put something in it. He subsequently comes out again and from his doorway appears to take a photo in the direction of the Respondent's parking bays; the Applicant brings more items out to his car and again takes photos on the way back inside;

(j) On 11 June 2013 at 4.27, a utility is reversed up to the factory of the Respondent and unloaded. The Applicant comes out to take photos from the street. The utility is later parked in a parking bay;

(k) On 20 June 2013, a video shows a truck entering on the Applicant's side and immediately being directed by the Applicant to back out. On earlier occasions, Mrs Vantwest says that couriers of the Applicant have parked briefly on the common property while making a drop off, although no photographs or video evidence was produced to demonstrate such incidents;

(l) Photos are produced on four separate occasions when the Applicant handed a copy of the Model Rules to their customers;[35] sometimes this has led to a verbal altercation with the customer; Mrs Vantwest states that this also occurred on other occasions, however the Applicant asserted that he could not recall any other occasions when this had happened;

(m) In June 2014 a guest of the Applicant is shown to be parked at an angle across two parking bays;

(n) On 7 September 2014 there are various demonstrations prepared by the Respondent, using Mrs Vantwest's vehicle parked in front of the roller door on the edge of the common property. In my view, these demonstrations clearly prove that there was insufficient space to allow clear and safe access to and exit from the Applicant's parking bays by the Applicant and his customers;

(o) In 2009, a video shows a guest in the Applicant's third parking bay reversing back over the common property in order to drive out. Mrs Vantwest agreed that the guest could not have executed this manoeuvre if any vehicle had been parked on the common property;

(p) In 2011, photos show three parking bays of the Respondent full and Mr Vantwest vehicle parked on the common property, leaving just enough space for the utility in the third bay to reverse across the common property behind Mr Vantwest's utility to drive out;

(q) Multiple videos on varying dates throughout 2013 and 2014 show the Applicant taking photographs of the customer vehicles of the Respondent, usually from the entrance to the common property and also often after the vehicle has left;

(r) Multiple videos showing verbal altercations between the Applicant and the Vantwests while the Applicant takes photographs. The Applicant usually says nothing or if abused will usually respond with words to the effect:

(s) Multiple videos showing the Applicant arriving early morning and reversing into his parking bay by driving across the whole of the common property;[36] and

(t) Multiple videos of Applicant taking photos as he comes out to put items in his car. Mrs Vantwest alleges he was taking photos for no reason. The Applicant says he was taking photos throughout the day to demonstrate that the parking bays remained full.

1. A number of regular customers of the Respondent gave evidence of their observations and in some instances interactions with the Applicant while making pickups or deliveries at the Respondent's factory.
2. Karl Bond made a statement dated 18 September 2014 and gave oral evidence. Mr Bond is an employee of Polan Truck Refinishers and has attended the Respondent's factory on numerous occasions to either pickup or deliver goods. Mr Bond gave evidence concerning an incident on 19 October 2012. Mr Bond and the Applicant gave conflicting versions of their encounter, both at the factory site and on the telephone.
3. Mr Bond said that he attended the Respondent's factory driving a vehicle slightly longer than a utility. He parked in front of the roller door within the common property. The Applicant soon appeared, took photos and told Mr Bond he was not permitted to park there. Mr Bond responded that he was merely dropping off a bull bar and also expressed some expletives. Upon returning to work, his employer told him to apologise as his conduct would give the company a bad name. He telephoned the Applicant, and asked if he could come around to have a chat, 'to mediate' and apologise and also asked the Applicant to take the photos off his camera. The Applicant told him he would call police if he came around. Immediately following the telephone call, Mr Bond's employer, Mr Polan, received a facsimile transmission from the Applicant headed 'Trespass Notice' which states as follows:[37]

I have just had a call from your employee Mr Carl Bond at approximately 2.50 pm today.

He suggested he would be coming to my factory after work tonight to see me.

I have declined his suggestion and advised him not to come and if he does he is trespassing.

Please advise Carl and Polan's that any implied licence to pass over the area on my title or entry to my premises is hereby revoked and future incidents will be treated as trespassing and acted on accordingly.

Please also find attached a copy of the Owners Corporation Model Rules. The Rules prohibit parking on our common property. Our Common Property is clearly defined here with a yellow border. [PDF attached - white area]

Please advise Polan's, footage is legal and taken by me for evidence on a daily basis for further litigation of breaches of Orders.

1. I note that in his statement Mr Bond makes no reference to wanting to mediate or having asked the Applicant to delete photos. He confirmed that he had a discussion with Mrs Vantwest after she contacted him to make a statement and she had described their dispute in the Tribunal.
2. Since October 2012, he has made a number of pickups and deliveries and parked in the same way.
3. The Applicant said that he came out to take photos only after a second vehicle parked wholly on the common property [which Mr Bond said he did not recall]. The Applicant took photos from the street, which he presented, and as he went back into his premises he said that Mr Bond started to abuse him to the extent that he felt motivated to write to his employer. The Applicant said that he did not ask Mr Bond to remove his vehicle.
4. Mr Bond subsequently rang the Applicant and spoke very aggressively saying that he would come around after work and get his photos deleted.
5. The Applicant described a further incident, on 23 July 2014, in which Mr Bond again attended and threatened to kill the Applicant if he took a photo of him. Mr Bond confirmed that he 'expressed expletives' toward the Applicant.
6. In response to Mr Bond's assertion that the Vantwests had told him to park as close to their parking bays as possible when making pickups and deliveries, the Applicant produced a photo taken on 23 July 2014 at 9.51 am which shows Mr Bond standing alongside his tray truck parked on an angle nearly wholly within the common property. Mr Bond confirmed his vehicle in the photo and suggested that this was unusual.
7. William Polan made a statement dated 18 September 2014 and gave oral evidence concerning two incidents. Mr Polan owns the business of Polan Truck Refinishers and has been doing business with the Respondent for approximately 7 years.
8. In relation to the incident described above concerning Mr Bond, Mr Polan confirmed having received a telephone call from the Applicant complaining about Mr Bond's behaviour which prompted Mr Polan to instruct Mr Bond to call the Applicant and apologise. Mr Polan's account of the telephone conversation which he overheard varies somewhat from each account of the participants and does not assist the Tribunal. He also confirmed receiving a subsequent facsimile from the Applicant. He agreed that the Applicant has not in writing or orally prohibited him or Mr Bond from attending the Respondent's premises.

1. In relation to the incident concerning Mr Bond, I accept that the Applicant has given a more credible account.
2. Mr Polan described a further incident on 1 May 2013 when he attended Factory 3 to drop off a bumper bar. Mr Polan parked in front of the roller door, more to the left hand side, untied his load and was assisted by Mr Vantwest and his son to remove a damaged bull bar. His vehicle would have remained there approximately 5 minutes. Mr Polan drives a 5 ton light truck with a wheelbase of 6 metres which he said would not fit into a standard car parking space. He has never been asked to park in a parking bay but agreed that if he did so, it would be possible to unload from the rear or the side, depending upon the size of the item.
3. The Applicant appeared and took photos and a video of his vehicle. Mr Polan agreed he was not sure whether the Applicant carried a voice recording device, referred to in his statement and denied by the Applicant on that day. The Applicant told him that he was not allowed to park on the common property and later placed a copy of the Model Rules in his truck. Mr Polan briefly looked at the document and then placed it in the Applicant's letterbox.
4. Mr Polan said that he had not read the signs which appeared on the factory building but on each occasion merely backed up to the roller door. In relation to the parking of his vehicle, he agreed that:
   • (a) His vehicle could be parked in a parking bay;
   • (b) His vehicle was shown in the photo of 1 May 2013 at 9.14 am, which shows his truck parked at an angle across the common property, but not parked close to the left-hand side. He moved his vehicle but agreed it was still largely on the common property;
   • (c) The Respondent's factory is long enough to accommodate his truck and he would park in there if asked;
   • (d) He could park his vehicle either within the factory or in a parking bay from where it could still be unloaded, with a fork lift if necessary; and
   • (e) He was aware that the common property is an area for the use of both Units.
5. The Applicant produced photos dated 17 March 2010 at 13.10 and 25 June 2012 at 11.00 in which a long truck and a tray truck respectively are parked within the Respondent's parking bay or alongside the parking bays within the Respondent's private property.
6. Geoffrey McLarty made a statement, dated 12 September 2014, and gave oral evidence about incidents on a number of dates in 2013. Mrs Vantwest asked him to make a statement which she typed up after he had written down 'bits and pieces'.
7. Mr McLarty attends the Respondent's factory in a one ton truck to deliver and pick up goods for his company Royans, which usually takes about 15 minutes. He will usually park on the common property in front of the roller door but he has also parked in a parking bay, if one is available. He agreed that he never sees the Applicant if he is not parked on the common property.
8. On 29 April 2013, the Applicant handed him a copy of the Model Rules.
9. On 1 May 2013, Mr McLarty was parked wholly within the common property and removed a ladder rack from his vehicle with a spanner. The Applicant took photos of his vehicle and told him he was not allowed to park on the common property. He approached the Applicant, asking him to leave him alone and to stop taking photos. The Applicant was backed into the street as Mr McLarty continued to approach him. Mclarty agreed that he 'shirt fronted' the Applicant effectively pushing him out of the way. Mr McLarty thinks he was pushed by the Applicant and fell to the ground. The Applicant denies deliberately pushing Mr McLarty stating that he merely stood his ground as Mr McLarty kept coming towards him. The Applicant contacted police following this incident.
10. A video of the above incident was produced, taken on behalf of the Respondent. Although the fall suffered by Mr McLarty is not clearly displayed, the lead up to it does clearly show Mr McLarty aggressively pushing the Applicant with his body causing him to walk backwards. I am satisfied that the Applicant gave a more credible account of the incident.
11. On 11 September 2013, Mr McLarty's vehicle is shown parked on the common property at 12.46 pm. The Applicant said he attempted to go outside to photograph the position of his vehicle when he was chased by Mr McLarty back into his premises [Mr McLarty agreed that he 'probably did']. The Applicant locked his door to prevent Mr McLarty gaining access as he hit the door from the outside. The Applicant produced photos of the whole incident which he had taken from inside his premises. Mr McLarty departed at 12.53 pm.
12. Following Mr McLarty's departure, the Applicant attempted to go outside and found that he was locked in from outside, an exterior lock having been pushed down. The Applicant contacted police who made contact with Mr Mclarty's employer. He then gained access to outside through his factory and took photos from the street.
13. Graeme Clark made a statement, dated 11 September 2014, and gave oral evidence. Mr Clark attends the Respondent's factory to deliver and pick up goods for his company, Recar, remaining between 5 and 15 minutes. He will park in front of the roller door, and has been told to park as close to the left-hand side is possible. He has never been told not to park on the common property. The Respondent's parking bays have not been available.
14. He referred to an incident on 22 March 2013 when the Applicant had parked his vehicle across his own parking bays. At 9.48 am Mr Clark's vehicle is shown to be wholly within the common property. The Respondent's parking bays are full. The Applicant approached Mr Vantwest and asked him to move Mr Clark's vehicle so that he could park his own vehicle in his parking bay. The Applicant took photos but did not speak to Mr Clark who continued to attend to his load and tried not to get involved. An argument ensued between Mr Vantwest and the Applicant.
15. Jonathan Vantwest and his friend Beau Bailey each made a statement, dated 13 September 2014, and gave oral evidence in relation to an incident on 5 October 2012. The statements are effectively in identical terms. I do not propose to document the evidence given in relation to this incident. In my view the account given by each of these witnesses was bizarre. In essence, the evidence merely confirms the acrimony and distrust which has built up between the Applicant and the Vantwest family.
16. Jonathan Vantwest is 22 years old and gave further evidence concerning the Applicant's photographing of him since he was 15 years old, including while he and his brother were walking past the Applicant's premises.
17. I do not propose to deal with Jonathan's evidence in any detail. In my view, he has been unfairly and inappropriately brought into this dispute and clearly had difficulty giving evidence from his own knowledge, recollecting events and giving evidence in face of his parents. However, it is noteworthy that:
    • (a) He agreed he has called the Applicant, 'a paedophile' and 'pedo';
    • (b) He was not aware of past consent orders made by the Tribunal concerning his driving on common property;
    • (c) He could not remember whether he had made threats to kill the Applicant, but did not deny making such statements;[38]
    • (d) He could not remember whether he had ever spat on the Applicant's factory door but said he could have done;[39]
    • (e) He agreed that sometimes they will park a vehicle in their parking bay and then move the vehicle in front of the roller door to load or unload;[40]
    • (f) He agreed that a vehicle could be safely unloaded from the rear while parked in the parking bay; and
    • (g) He agreed that he walks and rides his bike across the gravel adjoining the Applicant's parking bays and has deliberately kicked gravel onto these bays.[41]

1. Mrs Vantwest primarily spoke on behalf of the Respondent, with some input from her husband.
2. Mrs Vantwest said that they operated their business in a normal way and have done so since they commenced their business in January 2007. Their business primarily relies upon goods coming and going.
3. Since the date of the previous Tribunal Orders, the Applicant has interfered with the peaceful enjoyment of the Respondent's premises by placing them under continuous video surveillance including Sundays and public holidays. The Vantwest family has also been harassed and intimidated by the Applicant taking personal photos of them. In addition, the Applicant has interfered with their customers by taking personal photos of them and their vehicles and in many cases attempting to hand them a copy of the Owners Corporation Model Rules. Their customers have been upset, irritated and ultimately angry by such behaviour.
4. They did not intend to interfere with the Applicant's business or him personally. They have asked the Applicant to leave them alone, initially nicely but then they concede that they have uttered abuse, because they cannot tolerate photos being taken of them and their customers constantly, which distracts them from their work. They feel they have been constantly harassed and that it has been a constant fight to keep the Applicant out of their business. MrsVantwest described the Applicant as 'constantly in their face' taking multiple photos as soon as a customer arrives, muttering whilst he walks around. Her husband will react only when the Applicant says something. The Applicant has also used bad language toward them. They feel they have been under constant surveillance. Mrs Vantwest said that they were very sorry and ashamed about the language which they had used.
5. When their customers park in the Applicant's parking bays, as soon as she becomes aware, Mrs Vantwest says that she has asked them to move. If they refuse then she says that the Applicant is entitled to call police. She has approached a customer of the Applicant on one occasion only when the person looked lost.
6. In relation to the reactions of their customers and their sons:
   • (a) Mr McLarty did chase after the Applicant but only after he had told the Applicant multiple times, not to take photos of him; and
   • (b) She was unaware that her son Chris had behaved in the way that he did and she has since spoken to him.
7. Mrs Vantwest asserts that the Applicant's customers do have ample space to drive their vehicles in and out of his car spaces. If a vehicle is parked in front of their roller door, all drivers should be able to park within the Applicant's car parking bays having available to them a 6.4 metre turning circle, consistent with public car parking areas. The 6.4 metres is measured from the rear line of the Applicant's parking bays to an imaginary line at the position of the red line marked on the sign erected by the Respondent.[42] Mrs Vantwest say that this can be compared to 5.7 m available to Factory 2 where reverse parking is achieved.
8. She asserts that the car parking bays are intended to be used by driving a vehicle in nose first. Furthermore, they are car parking bays not truck parking bays. The sign containing the vertical red line was merely placed there to ensure that the Applicant and his customers did have enough space.
9. Mrs Vantwest agreed that they do occasionally unload from large vehicles, in the street, but smaller vehicles can be unloaded on the common property. Their factory cannot be used as it is required for other work.
10. Mrs Vantwest also agreed that on occasions they have used the whole of the common property to drive their vehicle, but they only do so if the space is available.
11. Mrs Vantwest noted that the Applicant has an alternative entrance from Rhur Street which also has a roller door, where his courier trucks can be unloaded. There is also an asphalted area to the left of the roller door.
12. Mrs Vantwest says that they cannot accommodate large trucks within their parking bays[43] and they are not permitted to use the street to work on vehicles or load and unload, although sometimes they do. She agreed that fitting of bull bars does occur within the factory but not loading and unloading. Courier drivers are not permitted in the factory other than to use the toilet facilities.
13. In relation to street parking, generally there is none available by 9.30 when she often arrives.[44] Their working hours are normally 9 am to 5 pm but may extend to 7 or 8 pm. They will also work on a Saturday from 9 or 10 am to 1 or 2 pm but there are no deliveries or pickups on Saturday.
14. Couriers will tend to park anywhere regardless of signs and will often have parked before they have a chance to tell them where to park. Mrs Vantwest tries to keep customers under observation but does not always see them on time or before the Applicant comes out with his camera.
15. Mrs Vantwest referred to the decision of Deputy President Lulham[45] where in relation to Rule 3.2 the following points were made:
    • (a) The Rules are not prescriptive;
    • (b) Rule 3.2 does not prohibit washing a car and use of the area while the other party is away; and
    • (c) There must be actual obstruction not theoretical obstruction.
16. In my view, the above comments to which Mrs Vantwest referred are taken out of context. A proper reading of Deputy President Lulham's decision does not give support to the Respondent's use of the common property.
17. Mrs Vantwest said that the Applicant has produced approximately 854 records but relatively few incidents which have actually caused obstruction or inconvenience to him. Mrs Vantwest asserted that the Applicant has not been prepared to consider any reasonable alternative proposal.

1. The Applicant relies upon serious ongoing intentional non-compliance with the Model Rules, in particular Rule 3.1, Rule 3.2, 5.1 and 5.2, in breach of the Tribunal Orders of 1 October 2011. The Applicant and his customers have been prevented from any fair and equal use of the common property; and obstructed from safe and easy access to and exit from his parking bays. Furthermore, during his efforts to properly document the breaches committed on behalf of the Respondent, the Applicant has been subjected to vile insults and abusive language and/or physical assaults.
2. The Applicant has sought to demonstrate by his photographs and videos that the Respondent:
   • (a) consistently uses all of its parking bays and often the adjoining grassed area for the parking of its own vehicles and bull bar equipment thus preventing customer car parking;
   • (b) has directed customers to park on the common property for the purpose of effecting deliveries, pickups, inspections and work upon their vehicles;
   • (c) by members of the Vantwest family have subjected the Applicant to humiliating and intimidating behaviour by constant verbal abuse and insults, including spitting, threats, taunts and being called a 'dog' and a 'paedophile'; the only option available to the Applicant in face of assaulting and threatening behaviour has been to call police; and
   • (d) encouraged or implicitly condoned abusive behaviour by customers toward the Applicant;
3. The Applicant denies the allegation of Mrs Vantwest to the effect that he has told their customers not to attend their premises. No customer gave evidence to this effect. The Applicant has advised customers that they are not permitted by the Model Rules to park on the common property. He has given copies of the Rules to 4 customers and on three of those occasions Mr Vantwest took possession of the document.
4. The behaviour of the Vantwest family has continued since the Applicant commenced business, and has continued notwithstanding the Tribunal Orders.

1. Section 137 of the VCAT Act provides, so far as it is relevant to the current proceeding, as follows:

(1) A person is guilty of contempt of the Tribunal if they -

(f) do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court.

(2) If it is alleged or appears to the Tribunal that a person is guilty of contempt of the Tribunal, the Tribunal may -

(a) direct that the person be arrested and brought before the Tribunal; or

(b) issue a warrant for his or her arrest in the form prescribed by the rules.

(3) On the person being brought before the Tribunal, the Tribunal must cause them to be informed of the contempt with which they are charged and thereafter adopt any procedure that the Tribunal thinks fit.

(5) If the Tribunal finds that the person is guilty of contempt of the Tribunal, it may -

(b) in the case of a corporation, impose a fine of not more than an amount that is 5000 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004.

(7) The Tribunal may accept an apology for a contempt and may remit any punishment for it either wholly or in part.

(9) A fine imposed on a person under this section may be enforced as if it were a fine imposed on that person by the Supreme Court on finding them guilty of an offence.

(10) A power conferred on the Tribunal by this section is exercisable only by a judicial member.

1. Paragraph 137(1)(f) provides to the effect that acts that would be regarded as amounting to contempt of the Supreme Court also fall to be dealt with under this provision. Accordingly, the Tribunal can punish all forms of contempt that are punishable by the Supreme Court, including the wilful failure of a person to comply with an Order of the Tribunal. In this context, before exercising the contempt power, the Tribunal must be satisfied, beyond reasonable doubt, that:[46]
   • (a) An order has been made by the Tribunal;
   • (b) The terms of the order are clear, unambiguous and capable of compliance;
   • (c) The order was served on the party alleged to be in breach;
   • (d) The relevant party has knowledge of the terms of the order;
   • (e) The party has breached the terms of the order; and
   • (f) The act constituting the breach was voluntary and deliberate and not merely as a result of inability to comply, or lack of comprehension, or lack of means to satisfy compliance.
2. The matters referred to under paragraphs (a) to (d) above are not in dispute. Accordingly, the analysis below will focus upon paragraphs (e) and (f).
3. The extensive contempt power reflects the importance of compliance with Tribunal orders and the importance of preserving the authority and standing of the Tribunal. However, the power should otherwise be exercised cautiously and should not be used unless there is no other effective way of enforcing the Tribunal's order. In this case, I am satisfied that the Applicant had explored alternative non-litigious options and that the contempt proceeding was the only effective procedure to enforce Tribunal Orders.
4. In Dental Practice Board of Victoria v Varnavides [2006] VCAT 457, Her Honour Judge Davis, Vice President, relevantly summarised from the authorities the considerations relevant to determining the appropriate penalty:[47]
   • (a) The seriousness of the contempt, the culpability of the contemnor and whether he has demonstrated contrition;
   • (b) The absence of previous convictions ...;
   • (c) Mitigating factors, including a plea of guilty and remorse ...; and
   • (d) Other factors which alone cannot be relied upon to escape punishment but may attract some leniency...
5. In addition to an appropriate penalty pursuant to s 137 of the VCAT Act the Applicant seeks indemnity costs and reimbursement of his filing fees.

1. My notes of the Directions Hearing held on 25 August 2014 record that Mrs Vantwest made the following preliminary submissions on behalf of the Respondent:
   • (a) Their customers mostly attend to deliver or pick up which cannot be done in a parking bay as it will usually require a manual crane or forklift;
   • (b) Deliveries comprise about 3 per day and take 2 minutes but a maximum of 10 minutes;
   • (c) When a forklift is used, about once per month, the attendance may take up to 15 minutes;
   • (d) Delivery of Aluminium sheets and gas bottles by large trucks cannot be accommodated in the parking bays; and
   • (e) On one occasion a motor home was accommodated in the factory overnight, but everything had to be moved out.
2. In my view, these preliminary submissions, in terms of the evidence now presented on behalf of the Applicant, do not accurately or at all reflect the activities of the Respondent.
3. On this occasion, both parties have sought a ruling or interpretation of the subject Model Rules which might definitively describe the behaviour or activities which do or do not fall within the Model Rules. In my view, and consistent with the observations previously made by Deputy President Lulham in Reeves case, while it is not the role of the Tribunal to give advisory opinions, the subject Rules are clear and unambiguous and their proper observance clearly precludes much of the activity of which the Applicant complains.
4. The previous Order of the Tribunal in respect of which this contempt proceeding has been brought specifically provided:

That the Respondent comply with Rules of the Owners Corporation and in particular...

1. Hence, while specific Rules are then referred to, the Order encompasses the Model Rules which have been adopted by the Owners Corporation. Relevantly Rule 3.1(1) and Rule 5.2 also falls to be considered.
2. For easier reference, I will set out the particular Rules of which the Applicant alleges have been consistently and intentionally breached and identify that behaviour, which I accept constitutes a breach of such Rule. I note that the Respondent also alleges that the Applicant has breached Rule 3.1(1) and Rule 5.1.

An owner or occupier of a lot must not obstruct the lawful use and enjoyment of the common property by any other person entitled to use the common property.

1. The above Rule is broadly expressed to the extent that it is not limited to use of a motor vehicle. Accordingly, in the context of the parties, it will encompass any conduct by an owner or occupier of either Unit 3 or 4, which does or is intended to obstruct the lawful use and enjoyment of the common property by the owner or occupier of the other Unit, including their customers.
2. It was previously acknowledged in the Tribunal's decision of 1 October 2011, that behaviour which might contravene this Rule, by vehicular parking and standing, would also contravene Rule 3.2(b).[48] However, in this proceeding, a breach of this Rule has been implicitly invoked by each party as follows.
3. First, the Applicant relied upon photographic evidence of a number of instances where the Vantwests (including a son) have stood on the common property, at a point adjoining the red line marked on their sign, thus obstructing either the Applicant or one of his customers from utilising the whole of the common property for the purpose of parking their vehicle or exiting from the Applicant's premises.
4. In each case demonstrated, I am satisfied, beyond reasonable doubt, that the behaviour of the Vantwests, on behalf of the Respondent, was voluntary and intentional and carried with it the clear objective of obstructing the Applicant or his customer from the lawful use and enjoyment of the common property.
5. Secondly, the Respondent relied upon the behaviour of the Applicant toward its customers in the following respects:
   • (a) by persistently photographing, including audiovisual recording, of customers and their vehicles;
   • (b) by handing customers a copy of the Model Rules; and
   • (c) by telling customers that they were not permitted to park on the common property.
6. The Applicant has consistently justified the above behaviour on the basis that:
   • (a) there was no other way to comprehensively document requisite evidence, for the purpose of the current proceeding; and
   • (b) the Vantwests made no effort to regulate the use of the common property by their customers in a manner consistent with the Rules.
7. I agree with both of these premises, subject to certain qualifications:
   • (a) First, in the absence of any intervention order limiting such activity, the Applicant was at liberty to take still and video photography both from his premises and manually from his private property or from the common property. I accept that he did so without any or any undue concealment and when questioned or confronted by customers, he attempted to explain the reason why he was taking such photographs;
   • (b) Secondly, while the Applicant was entitled to hand any customer a copy of the Model Rules of the Owners Corporation, the purpose in doing so is questionable. As previously pointed out by Member Nihill, it is not the function of any Unit owner, to police the activities of customers of another Unit owner in order to enforce compliance with the Model Rules. The behaviour of the Applicant in handing over copies of the Model Rules served only to cause bemusement, confusion and/or irritation to customers. At the same time, the behaviour of the Vantwests only served to compound the unnecessary involvement of their customers in the dispute between the Unit owners. Both parties bear a degree of responsibility in implicating the Respondent's customers in a dispute which should have been limited to the parties; and
   • (c) Thirdly, I accept that the Applicant was legally correct to inform customers of the Respondent that they were not entitled to park or remain on the common property. However, he did so without the knowledge or consent of the manager of the Owners Corporation; and the manner in which he often did so was highly problematic, in that it created confusion and consternation for these customers. Again, the responsibility for this situation primarily rests with the Respondent and the Vantwest family. It was their failure to comply with the Model Rules or enforce such compliance by their customers which prompted the Applicant to take matters into his own hands.
8. I am not satisfied, beyond reasonable doubt, that the Applicant has intentionally breached Rule 3.1(1) by engaging in the above behaviour. In particular, I accept that it was not his intention to obstruct the lawful enjoyment of the common property by the Respondent or its customers. Rather, it was his intention to ensure that his own use and enjoyment of the common property was not obstructed. However, the manner in which the Applicant frequently spoke to customers was unnecessarily officious. Furthermore, he apparently failed to adequately or appropriately have regard to the fact that such customers were merely acting with the express or implicit approval of the Vantwests.
9. Rule 3.2 (a) provides as follows:

An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle ... in parking spaces situated on common property and allocated for other lots.

1. Although this Rule has not been specifically addressed by the Applicant on this occasion, it needs to be considered in the total context of evidence.
2. There are no designated parking spaces on the common property allocated to any Unit. The prohibition upon 'parking' or 'leaving' a motor vehicle is clear and unqualified, save for emergencies. The common area is a driveway, the intended use of which is solely for access from the street to the factory premises of either Unit owner. What does this mean in practice?
3. The manner in which the Vantwests have been shown to utilise the common property is more consistent with their belief that:
   • (a) The common property may be used as an extension of their private property, whenever not being used by the Applicant or his customers;
   • (b) The Applicant and his customers do not have the same requirements as they do in respect of the common property; and
   • (c) The Applicant and his customers have an obligation to modify or adjust their access to and exit from the Applicant's designated parking bays in order to accommodate the conduct of the Respondent's business.
4. If indeed the Vantwests harbour any such beliefs, they are misconceived and plainly wrong. The common property, meaning the whole of the common property, must be available at all times for the equal use of the owner or occupier of Units 3 and 4. Accordingly, it follows that a vehicle driven from the street which is intending to attend upon either Factory 3 or 4, shall not park or remain for any period whatsoever on any part of the common property other than to move directly either into the factory premises or onto the private property or designated parking bay of either Unit owner. If a driver, while entering from the street or exiting from part of an owner's private property, stops momentarily, without leaving the vehicle, to collect, for instance a passenger or take instructions from the owner or occupier, such manoeuvre would still be consistent with the common property being used as a driveway, provided however that in doing so the vehicle does not present an obstruction or impediment to another vehicle wishing to enter or exit either premises.
5. It follows therefore that any parking on any part of the common property for the purpose of loading or unloading, inspecting or working for any period is prohibited by this Rule. In practice, the period taken by customers of the Respondent, while varying significantly, is typically in excess of 5 minutes and more often 10 to 15 minutes. This practice is clearly in breach of this Rule.
6. Rule 3.2 (b) provides as follows:

An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle ... on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot.

1. As indicated in the Tribunal decision of 1 October 2011, alleged non-compliance with this Rule has been the main basis for confrontation and dispute between the parties.
2. For the purpose of assessing whether a particular activity constitutes an obstruction for the purpose of this Rule, I will ignore the operation of the other Rules.
3. It was contended, on behalf of the Respondent, that the Applicant and his customers were not in fact obstructed or inconvenienced in their access to his premises or his parking bays by their use of the common property. In my view, this contention is patently wrong. As indicated above, even the photographic evidence of the Respondent proved that the safe and convenient access to and exit from the Applicant's parking bays could be obstructed by a vehicle parked on any part of the common property. The degree of such obstruction varied significantly according to the size of the Applicant's or his customers vehicle and the size of the Respondent's or its customers vehicle. More often, the vehicles parked on the common property were large and frequently the area utilised extended beyond the footprint of the vehicle, to include an area utilised by a forklift, trolley or mobile crane and the customers and employees of the Respondent walking or working around the vehicle.
4. The measurements upon which the Respondent purported to rely for the purpose of establishing that there was an adequate turning circle for the Applicant and his customers are inapplicable to the current circumstances. In particular, such measurements do not reflect an adequate space or turning circle by reason of the above described activities. As mentioned during the hearing, the parking by the Respondent's employees and customers is not a static phenomenon. There is activity associated with each such parked vehicle, namely loading, unloading, inspecting and working. These activities frequently extend significantly into the common area beyond the area occupied by the relevant vehicle.
5. I am satisfied, beyond reasonable doubt, that the parking or leaving of vehicles upon the common property for any period creates obstruction or potential obstruction to the Applicant and his customers and constitutes a contravention of Rule 3.2(b). I am also satisfied, beyond reasonable doubt, that the employees of the Respondent have knowingly and intentionally parked or left their vehicles on the common property and permitted or instructed their customers to do the same.
6. I reiterate the point made by Member Nihill in her earlier decision, namely, that it is irrelevant whether, at the time when the Respondent is utilising the common property as described, the Applicant is utilising a parking bay or whether any other of his parking bays are being used at any point in time or whether any customer of the Applicant is attending or attempting to enter or exit his premises. The Applicant and his customers, during all times when he is or may be likely to access or exit his premises, is entitled to the un-encumbered and equal use of the whole of the common property.
7. I am further satisfied, upon the evidence of the Applicant, that by reason of the activities of the Respondent, he has significantly modified the manner in which he has to operate his business and interact with his customers, to his detriment.
8. Rule 3.2(c) provides as follows:

An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle ... in any place other than a parking area situated on common property specified for that purpose by the owners corporation

1. Lot owners and occupants must not park or leave their vehicle in any place on common property, other than a designated parking space. There are no designated parking spaces on the common property. Rule 3.2(c) does not concern itself with whether a Lot owner is 'obstructed'. It simply prohibits parking or leaving a vehicle on common property. It is therefore more extensive in its operation than Rule 3.2(b) and captures any parking or leaving of the Respondent's vehicles or those of its customers.
2. I am satisfied, beyond reasonable doubt, that the evidence adduced by the Applicant, as detailed above, provides compelling evidence of the Respondent's contravention of this Rule.
3. Rule 5.1 provides as follows:

Behaviour of owners, occupiers and invitees on common property.

An owner or occupier of a lot must take all reasonable steps to ensure that guests of the owner or occupier do not behave in a manner likely to unreasonably interfere with the peaceful enjoyment of any other person entitled to use the common property.

1. While the above Rule refers to an owner or occupier ensuring that its guests do not behave in a particular manner, sensibly read in the context of the heading, which also refers to the 'Behaviour of owners, occupiers and invitees...'. I take this Rule to apply equally to owners and occupiers directly.
2. The evidence adduced by the Applicant, particularly in the audiovisual examples, attest to extensive and quite vitriolic personal abuse and physically confronting behaviour, particularly by Mr Vantwest but also by Mrs Vantwest and one or more of their sons, being directed toward the Applicant. In addition, customers of the Respondent have occasionally abused and, in some instances, physically confronted or assaulted the Applicant when he has taken photographs, or told them not to park on the common property.
3. In the vast majority of audiovisual displays from both the Respondent and the Applicant, the Applicant was not heard to respond in any way. He simply takes his photographs, often from multiple angles and quickly retreats into his factory. In a proportion of cases he does reiterate why he is taking photographs and implores the Respondent's employees to comply with the Model Rules. There is no question that the photography undertaken by the Applicant has been persistent and in relation to customers somewhat confronting and certainly confusing. Equally, the manner of the Applicant is somewhat officious. However, I am satisfied that the Applicant has been relatively mild mannered and courteous in his interactions with customers in particular and as far as practicable with members of the Vantwest family. I am also satisfied that, without the vast extent of documented photography, it would have been difficult for the Applicant to prove the extent of non-compliance by the Respondent of the relevant Model Rules. This is particularly the case in face of prior allegations on behalf of the Respondent which purported to minimise the offending behaviour.
4. I am satisfied, beyond reasonable doubt, that the Vantwests have engaged in abusive and insulting behaviour toward the Applicant to a quite extra ordinary extent and beyond any reasonable response which might be tolerated or excused on account of the Applicant's persistent presence in taking photographs.
5. Furthermore, I am satisfied beyond reasonable doubt, that the Vantwests have encouraged or condoned instances of abusive behaviour by their customers.
6. I am satisfied, beyond reasonable doubt, that the Respondent, by its Directors and/or employees, has persistently contravened Rule 5.1.
7. Rule 5.2 provides as follows:

An owner or occupier of a lot, or a guest of an owner or occupier, must not unreasonably create any noise likely to interfere with the peaceful enjoyment of any person entitled to use the common property.

1. I do not propose to consider the evidence any further in the context of this Rule. I am satisfied that the evidence relied upon by the Applicant, in breach of this Rule[49] has otherwise been relied upon for breach of Rule 5.1, which I have found proven.

1. I am satisfied, beyond reasonable doubt, that the Respondent, by its Directors and/or employees has committed serious and persistent breaches of the Model Rules as detailed above.
2. I am further satisfied, beyond reasonable doubt, that the acts constituting the breaches were voluntary and deliberate and not merely as a result of inability to comply, or lack of comprehension, or lack of means to satisfy compliance.
3. I am satisfied, beyond reasonable doubt, that the Respondent has failed to comply with the terms of the Order made by the Tribunal on 1 October 2011 and, accordingly, I find the Respondent guilty of the contempt with which it is charged.
4. It is also noteworthy that the complaints, now so exhaustively documented by the Applicant since his previous application was dismissed on 24 April 2012, bear a remarkable similarity with the complaints then made and with the offending conduct which Member Nihill accepted had been committed by the Respondent in her Reasons for Decision made on 1 October 2011.
5. I am satisfied that the Respondent has, by the actions of its Directors and/or employees since April 2012, displayed a contemptuous disregard for the Tribunal Order of 1 October 2011.
6. I am further satisfied that the evidence compiled by the Applicant has clearly demonstrated that the Respondent is capable of conducting its business in a manner which would not contravene Model Rules 3.1 or 3.2. In particular, it is incumbent upon the Respondent:
   • (a) to make adequate parking bays available for the parking of its customers vehicles;
   • (b) to load, unload, work upon and inspect its customers vehicles either in its own parking bays, within its factory or in limited but appropriate circumstances, in the street;
   • (c) to instruct its customers not to park or leave their vehicles on any part of the common property for any period other than the time necessary for such customers to drive into their factory or to their parking bay; and
   • (d) to remove all signs currently displayed which explicitly or implicitly instruct or permit the parking or leaving of any vehicles on the common property.

1. In determining an appropriate penalty I have taken into account:
   • (a) The seriousness of the contempt;
   • (b) The significant time over which the contempt has been committed, being over two and one half years since the previous hearing;
   • (c) The similar nature of alleged breaches to those raised by the Applicant in prior hearings;
   • (d) No satisfactory explanation for the conduct which forms the basis of the various charges, particularly having regard to alternative arrangements which can be made;
   • (e) The persistent disregard for the reasonable needs of the Applicant, in the operation of his business and dealings with customers;
   • (f) The persistent failure or refusal by the Respondent to conduct its business in a manner which did not require the use of the common property;
   • (g) The significant disruption caused to the Applicant's business;
   • (h) The fact that previous findings of breaches of the Rules by the Respondent have been made; and
   • (i) The lack of any remorse or acknowledgement of wrongdoing on behalf of the Respondent.
2. I also acknowledge and take into account that:
   • (a) Both parties have made concerted efforts, in their own ways, to resolve their dispute in the past;
   • (b) The Vantwests have regrettably developed a mindset over the years that their method of business operation is justified and in doing so appear to have become somewhat 'blinded' to the terms of the Rules;
   • (c) Mrs Vantwest's apology and regret for the language used toward the Applicant; and
   • (d) The Respondent effectively operates a small family business.
3. In the circumstances, a significant fine is warranted. The fine imposed upon the Respondent is $10,000.
4. The Counterclaim of the Respondent is dismissed.

[18] Exhibit 13 to Applicant's affidavit sworn 30 July 2014. The Applicant said that he complained to the Owners Corporation about this sign on 23 April 2013, but has been outvoted.

[19] Exhibit 16 to Applicant's affidavit sworn 30 July 2014.

[20] Exhibit 12 to Applicant's affidavit sworn 30 July 2014.

[21] Exhibit 15 to Applicant's affidavit sworn 30 July 2014.

[22] Exhibit 1 to Applicant's affidavit sworn 30 July 2014.

[23] In her evidence Mrs Vantwest said they agreed to delineating the common property with yellow lines but did not agree to the 'Keep Clear' sign.

[24] Mr Kanter produced a photo, dated 12 March 2010, which shows the paint marks.

[26] On 2 November 2011; and 7 October 2013 at 8.44.

[30] On 26 June 2012 at 10.30; 11 July 2014 at 12.49; and 1 October 2014 at 8.51.

[31] 18 March 2014 at 15.33 until 15.55; 18 August 2014 at 12.53; and 18 September 2014 at 17.23.

[32] Exhibit 2 to Applicant's affidavit sworn 30 July 2014.

[33] Exhibit 13 to Applicant's affidavit sworn 30 July 2014.

[34] Exhibit 16 to Applicant's affidavit sworn 30 July 2014.

[35] 11 May 2013 at 1242; 1 May 2014 involving Mr Polan; 29 April 2013 involving Mr McLarty; and 11 April 2014 at 424 involving a female customer.

[38] The Applicant produced a video taken 22 August 2012 in which Jonathan is heard to say words to the effect: 'get out of my friggin way... I am going to kill you...

[39] Mr Kanter produced a video taken on 22 January 2013 showing Jonathan walking over to his factory and a subsequent photo taken 17.51 showing spit on his door.

[40] Photo taken 29 August 2012 at 9.52 shows one parking bay empty while Mr Vantwest's utility is being unloaded on the common property.

[41] Mr Kanter produced a number of photos and said he had to often sweep gravel off his parking bays to avoid customers in high heels being thrown off-balance.

[42] Depicted in photo 2014/08/30 at 11.04.37 attached to the response of Debbie Vantwest dated 29 September 2014 to the affidavit of Applicant dated 22 September 2014.

[43] Cf the extensive photographic evidence produced by the Applicant showing a large range of vehicles, including very large trucks, parked in the Respondent's parking bays, from where they were also loaded, unloaded or inspected.

[44] Cf extensive photographic evidence produced by the Applicant showing available street parking throughout the day.

[45] Reeves v Clark (Owners Corporation) 2011 VCAT 2436.

[46] Refer Bradford v Dimopoulos [2007] VCAT 1409 per Harbison J at [27-28], [30-31]; Moreland CC v Stranaghan (2002) VCAT 190.

[49] Charge 4 and Exhibit 18 to Applicant's affidavit dated 29 July 2014.