Lake Heron Villas [2025] QBCCMCmr 106

The Body Corporate for Lake Heron Villas (respondent)

Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

BY-LAWS - whether by-law contravention notices issued to the applicant in very general terms were valid; whether the body corporate was obliged to issue contravention notices to another resident when notified by the applicant of alleged breaches; whether the body corporate must stop contacting the applicant's landlord about alleged by-law contraventions.

Act, ss 94(1)(b), 94(2), 100(5), 101B, 118, 167, 182(1), 183(1), 183(4)(c), 238(1)(a), 243, 276(1); Standard Module, ss 45, 152.

1. The two by-law contravention notices issued to the applicant on 3 May and 23 August 2024 were always void.
2. The application is otherwise dismissed.

• [1] Ms Monypenny of lot 15 says she and Ms Heywood, who lives nearby, were once on good terms. Their children played together at Ms Monypenny's home under her supervision.
• [2] But the relationship broke down after Ms Monypenny's daughter, who has a health condition that can cause her to become dysregulated and "push/hit/pull hair etc", hurt Ms Heywood's daughter and other children on several occasions. Conflict broke out about this and various other issues: parking, noise, whether one child's shoes had mistakenly gone home from daycare with the other child. The body corporate committee became involved.
• [3] Ms Monypenny accuses the committee of bias due to the chairperson's friendship with Ms Heywood. She says the committee acted on Ms Heywood's complaints against her, issuing by-law contravention notices and contacting her landlord, while refusing to act on her concerns with Ms Heywood. She seeks orders against the body corporate in the following terms:
  1. Removal of breach and contravention orders against myself and child
  2. Ordering the body corporate to comply with code of conduct
  3. Ordering body corporate to address any breaches of this code of conduct
  4. Assessing the conduct of the board and committee and taking appropriate action
  5. The body corporate stop causing unreasonable nuisance to my landlord
  6. Ordering the body corporate to not make unreasonable and unlawful breaches against myself in the future
  7. Enforcement of by-laws of other residents
  8. Ensuring myself and my child are protected from slander, discrimination and ableism, bigotry and our human rights protected.
  9. That the body corporate stops trying to coerce my landlord to evict me.

• [4] Ms Monypenny submitted copies of three notices, though one was a notice to remedy a breach of a tenancy agreement issued to Ms Monypenny by her landlord at the suggestion of the body corporate manager. That notice was issued pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 and is beyond my jurisdiction.
• [5] The others were by-law contravention notices from the body corporate citing breaches of by-laws 2(a) and 5(b):

(a) An Occupier must not create any noise likely to interfere with the peaceful enjoyment of a person lawfully on another Lot or the Common Property.

(b) An Occupier must not cause a nuisance or act in such a way as to interfere with the peaceful enjoyment of a person lawfully on another Lot or the Common Property

• [6] The first, dated 3 May 2024, said Ms Monypenny had breached the by-laws in the following manner:

Harassment, Verbal abuse, intimidation, bullying of myself, family and visitors. Violence by [Ms Monypenny's daughter to Ms Heywood's daughter]. Cressida [and her daughter] constantly screaming and yelling.

• [7] I have several reservations about this notice:
  1. A by-law contravention notice must state "details sufficient to identify the contravention".[1] The description given by the committee is very general. There is little to say precisely what Ms Monypenny did to whom to breach the stated by-laws.
  2. It is unclear how Ms Monypenny's daughter's violence could be characterised as a breach of either by-law. There is no suggestion it was noisy, and it apparently happened in Ms Monypenny's home, so it did not affect a person lawfully on another lot or the common property contrary to by-law 5(b).
  3. The committee can only give a future contravention notice if it reasonably believes a contravention will be repeated.[2] If the violence occurred a year or two earlier as Ms Monypenny claims, and the girls no longer played together, I question how this condition could have been met.
• [8] The second contravention notice of 23 August 2024 described the offending conduct as:

Harassment, intimidation, bullying and victimisation of residents. Constant excessive noise, yelling, screaming and swearing.

• [9] This notice also lacked "details sufficient to identify the contravention".
• [10] Perhaps this level of detail would be sufficient if there could be no doubt about the offending conduct in the circumstances. But Ms Monypenny claims ignorance, admitting only to a single noisy birthday party but otherwise denying "constant" excessive noise or any "harassment, intimidation, bullying and victimisation of residents". The committee claims to have received complaints, but it did not submit them nor make their details known to Ms Monypenny (except in relation to the party). No submissions were received from owners, aside from one in support of the application.
• [11] I will declare both contravention notices void, but not order the body corporate "to not make unreasonable and unlawful breaches against myself in the future". An order in such general terms would serve no useful purpose. The body corporate is already subject to a general obligation to comply with the law and act reasonably.[3]

• [12] The body corporate manager and voting members of the committee are subject to codes of conduct,[4] but they are not (and could not be[5]) respondents to this application. The body corporate itself is not subject to a code of conduct.
• [13] Ms Monypenny asks that the body corporate "addresses" any breaches of the codes. The option available to the body corporate in the event of a breach of the code of conduct for a committee voting member is to remove that member from office in accordance with the procedure described at section 45 of the Standard Module. Two ordinary resolutions are required: the first to authorise giving the member a notice with details of the alleged contravention, the second to remove them from office. At this stage though, the procedure does not seem to have been attempted. No motions to issue notices or remove committee members have been submitted to general meetings. Until that is attempted and miscarries in some way, there is no dispute under the Act about the body corporate's enforcement of the code of conduct to enliven the jurisdiction of an adjudicator.[6]
• [14] The code of conduct for body corporate managers is enforced by the body corporate in a similar way.[7] It also requires an ordinary resolution to be passed at a general meeting, which has not been attempted.
• [15] This part of the application is dismissed.

Assessing the conduct of the committee and taking appropriate action

• [16] I can make just and equitable orders to resolve disputes.[8] In that endeavour, the applicant bears the burden of demonstrating their entitlement to the orders they seek, and the respondent and other affected parties have the opportunity to respond.[9] It is not an adjudicator's role to conduct some open-ended assessment of the committee's behaviour and impose whatever orders they might consider appropriate, independently of the specific orders that were contemplated by the parties.

Nuisance to/coercion of Ms Monypenny's landlord

• [17] Ms Monypenny submitted an email sent by the body corporate manager to her landlord on 19 August 2024 that:
  1. quoted two complaints received by the committee
  2. asked the landlord to remind Ms Monypenny that her child must be supervised on the common property and that she should not make excessive noise
  3. asserted the landlord had an obligation to ensure his tenant behaved properly, and
  4. suggested the landlord give his tenant a notice to remedy breach.
• [18] The body corporate manager sent a further email to Ms Monypenny's landlord on 26 August 2024 with a copy of a contravention notice, some critical feedback from the committee, and the following warning:

If there is no change of behaviours from your tenant after the notice is served, the body corporate may take the matter further. Your tenant also has such option.

For this ongoing matter, if the matter finally needs tribunal or court intervention, you may be involved in the proceeding as well. If it is dragged too long, it will not be good for anyone, including you, as you will continue being harassed for the matter. You may consider options at your side, either issuing notice to leave, give the tenant plenty of time to find alternative accommodation, or do nothing. If you decide not to act, the body corporate has the option to apply for a termination order to evict the tenant.

• [19] Ms Monypenny does not explain how these emails were unlawful or why the committee is obliged to refrain from sending them. She mentions nuisance, but the prohibition of nuisance only applies to occupiers, not the body corporate.[10]
• [20] It is doubtful whether this conduct amounts to a lawful nuisance in any event. A nuisance is a substantial and unreasonable interference with the use and enjoyment of land.[11] It is not evident that these emails or their contents interfered with the landlord's use of his lot in any material way. Even if they did, Ms Monypenny would likely lack the standing to bring an application to address it.[12]
• [21] This part of the application is also dismissed.

• [22] Ms Monypenny gave the committee three notices asking it to issue by-law contravention notices to Ms Heywood:
  1. on 1 June 2023, Ms Monypenny alleged Ms Heywood was holding frequent loud social gatherings outside her lot in breach of by-law 2(a)
  2. also on 1 June, Ms Monypenny claimed breaches of by-law 5(b) in the form of Ms Heywood's social gatherings, her intimidation, bullying, discrimination, and nastiness, and her recent use of a firepit on her driveway, engulfing lot 15 in smoke, and
  3. on 9 July 2024, Ms Monypenny claimed a breach of by-law 17 (requiring occupiers to take reasonable steps to ensure their invitees abide by the by-laws and not interfere with others' peaceful enjoyment) because Ms Heywood's guest gave her the finger and threatened her on 19 April 2024.
• [23] The body corporate must enforce the by-laws, and act reasonably in the exercise of that function.[13] It may give a by-law contravention notice if it reasonably believes a contravention has occurred and is likely to continue or reoccur.[14]
• [24] I am not aware that any evidence of the frequency, duration, time, or volume of Ms Heywood's social gatherings was submitted to the body corporate, or any evidence of the actions of Ms Heywood's invitee. None was submitted with the application either.
• [25] It is also not evident that the specific behaviour Ms Monypenny has in mind when she claims bullying, intimidation, discrimination, and nastiness amounts to a lawful nuisance or other interference with the peaceful enjoyment of a lot or common property. Text messages complaining about Ms Monypenny's child would not have that character, for example. The firepit on Ms Heywood's driveway might, if the smoke was as bad as Ms Monypenny claimed. There does not seem to have been any evidence of the severity of the smoke though, nor is it obvious that the behaviour was likely to be repeated such that a contravention notice might reasonably have been required.
• [26] Given the general lack of evidence of these events, I am not satisfied that the committee ought to have "reasonably believed" that contraventions had occurred, were likely to reoccur, and therefore should be the subject of contravention notices to Ms Heywood.

Protection from "slander, discrimination and ableism, bigotry and our human rights protected"

• [27] I cannot order the body corporate to provide such protection. It is not clear precisely what that would require of the body corporate. The body corporate would not know how to comply with an order in those terms, and the order would likely be impossible to enforce.

• [28] For these reasons, I will order that the two contravention notices against Ms Monypenny are void and the remainder of the application is dismissed.

[1] Act, s 183(4)(c).

[2] Act, s 183(1).

[3] Act, ss 94(2) & 100(5). See also Daish v Body Corporate for Birchgrove CTS 100 [2013] QCATA 13 at [13]- [15].

[4] Act, ss 101B, 118, schedule 1A, schedule 2.

[5] Act, s 227(1).

[6] Walden v Broadwater Tower Body Corporate [2015] QCATA 28 at [23].

[8] Act, s 276(1).

[9] Act, s 243.

[10] Act, s 167; by-law 5(b).

[11] Norbury v Hogan [2010] QCATA 27 at [13].

[12] Act, s 238(1)(a).

[13] Act, s 94(1)(b) & (2).

[14] Act, ss 182(1) & 183(1).