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

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

BY-LAWS - whether the body corporate has failed to enforce a by-law against an owner - CODE OF CONDUCT - whether the body corporate has failed to enforce the committee code of conduct against a committee member - COSTS - whether the application is frivolous, vexatious, misconceived or without substance - whether costs should be awarded.

Act, ss 94, 100, 101B, 167

1. The application is dismissed.
2. Within 14 days of the date of this order the applicants, Peter and Christine McPhee, must pay the Body Corporate for Proud's Landing the amount of $2,000 as partial compensation for its financial losses arising from this application.

• [1] This application arises from conflict between the applicants and the affected person, who is an owner and occupier of a lot in the scheme and also a committee member.
• [2] The applicants describe an incident in September 2023 in which they assert that the affected person was abusive to them. They claim the affected person has previously been abusive to them and that they are afraid of the affected person. The applicants applied to the Magistrates Court for a peace and good behaviour order, and the affected person made a crossclaim, but both matters were subsequently withdrawn. The applicants say they have raised the matter with the body corporate, but it has done nothing about it.
• [3] The applicants say the body corporate should enforce compliance with the committee code of conduct and issue breach notices to the affected person. They further say the body corporate should issue a by-law contravention notice to the affected person for breaching By-law 1. They seek orders to that effect.

• [4] Proud's Landing community titles scheme 19743 (Proud's Landing) is a 266-lot scheme at Coombabah. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as group titles plans 3427 and 3581.
• [5] This application substantively seeks the following orders:
  1. That the Body Corporate acts reasonably in that it ensures that the committee complies with its Code of Conduct in that it issues a breach to Daniel Every for breach of its Code of Conduct in that he did abuse, threaten and stalk us.
  2. That the Body Corporate issue a breach to Daniel Every on the basis he also breached Prouds Landing bylaw 1 - Nuisance.

• [6] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [7] In May 2024 the applicants applied for conciliation of their dispute with the body corporate.[3] The parties reached an agreement in July 2024, but it that did not resolve the matter for the applicants. This application was subsequently lodged on 28 November 2024.
• [8] The Commissioner invited submissions on the application from the committee, the affected person, and all owners.[4] Two submissions were made, which the applicants responded to.[5]
• [9] A dispute resolution recommendation was made referring the file to department adjudication.[6] I have now investigated the dispute, including reviewing the application and submissions.[7]
• [10] I note comments have been made about the conciliation proceedings. However, evidence of anything said or done about a dispute in a departmental conciliation session is inadmissible in a proceeding.[8] Accordingly, I have not had regard to those comments.

• [11] The submission from the body corporate opposes the application. It includes:
  1. The adjudication process is not intended to address interpersonal conflict. It does not wish to become embroiled in an interpersonal dispute.
  2. It complied with the conciliation agreement.
  3. It strongly denies the various allegations about the committee and body corporate. It has acted reasonably, and in the best interests of all occupiers, when addressing issues related to the applicants.
  4. There is no legislative obligation on the committee to commence the process to remove a committee member from office upon request from an owner. There is no legislative obligation on the committee to issue a contravention notice merely because they have been given a BCCM Form 1.
  5. The applicants are primarily complaining of historic issues that cannot reasonably be pursued by the body corporate given the elapse of time. The allegations were pursued in the Magistrates Court at the time and the parties chose to withdraw their complaints.
  6. The applicants have provided no evidence of a further incident since September 2023. An isolated incident does not justify a contravention or breach notice being issued.
  7. The committee considered all the information provided by the applicants. Acting reasonably, on 23 October 2024 it decided against further action.
  8. The applicant can submit a motion or bring an application against the affected person.
  9. The main reason for the orders appears to be a validation of the applicants' own opinion of the event, which is not the purpose of final orders.
  10. The body corporate will continue to monitor compliance with the code and by-laws.
  11. The application should be dismissed as frivolous, vexatious, misconceived and/or without substance.
  12. The applicants have made several applications against the body corporate. They have not been successful in any prior adjudication applications. Without some adverse consequences, the respondent will continue to incur unnecessary time and legal costs responding to the applicants.
  13. It seeks reimbursement of its legal expenses, which have far exceeded $2,000, that were reasonably incurred in relation to this application.
• [12] The affected person and his spouse also oppose the application. Their submission includes their own affidavits and supporting documentation and says:
  1. At no point did he ever swear at or threaten the applicants. He only asked them to stop taking photos of him, his family and his private property, and to stay away from them. The applicants caused a disturbance by coming to their house and causing a nuisance.
  2. None of the applicants' claimed witnesses can say what was said on the night. They are only repeating what the applicants told them. They did not swear affidavits and were produced as new evidence after the court case.
  3. The applicants have photographed other people's property over the years and say they will continue to do so. They allege other conduct by the applicants against them.
  4. The applicants have made false statements as to what was said in court.
  5. The committee followed due process by waiting for a result from the court before responding to any one's allegations.
  6. This is all about trying to get him off the committee.
• [13] In response, the applicants say the orders should be made because body corporate failed to discharge its duty to act reasonably, failed to properly consider their position and previous complaints, and the affected person's conduct clearly amounts to a nuisance and a breach of the by-laws. They dispute the application is of an interpersonal nature. They say it relates to the reasonableness of the body corporate in dealing with their complaints and their desire to ensure all owners and the body corporate comply with the code of conduct. They say they are entitled to lodge this application as an alternative to submitting a general meeting motion.
• [14] The applicants dispute that the September 2023 incident was an isolated event. They say there have been several other instances of this behaviour. They refer to a complaint made by the second applicant in February 2021 of the affected person 'stalking' the applicants in around June 2020, and the affected person directing a rude gesture to the first applicant in mid-2020. They say the conduct is 'undoubtedly' a nuisance within the meaning of the by-law and has unreasonably interfered with their use and enjoyment of common property.
• [15] The applicants maintain that the body corporate failed to act reasonably. They say it gave undue regard to the Magistrates Court proceedings, which were withdrawn due to their financial circumstances and not insufficient evidence. They say the committee did not retrieve statements from residents who agreed to speak to the committee about the incident.

• [16] I concur with the body corporate's comments about interpersonal conflict in a body corporate. It is not the responsibility of a committee to manage conflict amongst individuals in a body corporate and it is not the purpose of the adjudication process to address interpersonal conflict except where it is directly related to rights, powers or obligations under the legislation or CMS.
• [17] The primary legal issue in this dispute is whether the body corporate met its obligations in regard to the committee code of conduct and the by-laws. I will set out those obligations and consider the body corporate's decisions. It is not my task, in the context of this dispute, to determine whether the affected person breached the committee code of conduct or any by-law. However, I will have regard to the evidence of those allegations provided by the applicants to the body corporate in considering the body corporate's decisions.

• [18] A body corporate must administer the common property and body corporate assets, enforce the CMS, and carry out any other functions given to it under the Act and CMS.[9]
• [19] A body corporate must act reasonably in undertaking its functions, including in making decisions.[10] Similarly, a committee must act reasonably in making decisions.[11] The test for reasonableness is an objective one, based on a consideration of all relevant circumstances in the case.[12] The Queensland Civil and Administrative Tribunal has said:[13]

A legally reasonable decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong.

• [20] It is not for an adjudicator to substitute their own views about what might have been a preferable action or decision.[14] For intervention to be warranted, an adjudicator must be satisfied that a body corporate's decision was manifestly unreasonable.
• [21] The person disputing a body corporate's decision or action (or failure to make a decision or act) bears the onus of demonstrating that the body corporate did not act reasonably.

• [22] The Act sets out a code of conduct for committee voting members (the code).[15] The code applies to committee voting members, with members taken to have agreed to comply with it upon becoming a committee member.[16]
• [23] The Act does not impose a positive obligation on the body corporate to enforce the code. However, the legislation prescribes a process for a voting member of the committee to be removed from office for breaching the code.[17] The first step in that process is for the body corporate to decide, by ordinary resolution at a general meeting, to give the committee member a written notice detailing the alleged breach of the code. Then, at its next general meeting, the body corporate could pass another ordinary resolution to remove the member from office.

• [24] All owners and occupiers are required to comply with the CMS, including the by-laws in the CMS.[18] As part of its general functions, the Act explicitly imposes an obligation on the body corporate to enforce the by-laws recorded in the CMS.
• [25] An owner or occupier can notify a body corporate if they reasonably believe another owner or occupier has breach a by-law and if the circumstances of the contravention make it likely that the contravention will continue or be repeated.[19] A complainant must use the approved form (BCCM Form 1) to notify the body corporate.[20]
• [26] If a body corporate wishes to pursue an alleged by-law breach, it can decide to issue a by-law contravention notice.[21] The notice must state certain things, including the nature of the breach, and be given to the person believed to be breaching the by-law. If the contravention notice does not rectify the matter, the body corporate can choose to commence proceedings in the Magistrate's Court for non-compliance with the breach notice or may lodge an application in the Commissioner's office about the breach.
• [27] A body corporate is not required to issue a by-law contravention notice when it has received notification of an alleged breach. It is also not required to issue a contravention notice when it believes a by-law may have been breached. The legislation says the body corporate must:
  1. reasonably believe the owner or occupier is contravening the by-law, and
  2. reasonably believe the circumstances of the contravention make it likely that the contravention will continue or be repeated.
• [28] Even if both those criteria apply, the legislation only says the body corporate may give the person a contravention notice requiring them to remedy or not repeat the contravention. It may not be reasonable for a committee to issue contravention notices for every by-law breach it identifies. For example, minor or isolated breaches, or breaches it believes can be addressed without formal action, may not warrant a contravention notice being issued.
• [29] Accordingly, a committee must first decide if it believes there was a breach. In doing so, it should look at the words and meaning of the by-law and the detail it has about the alleged conduct. It could undertake further investigations, but it is not necessarily obliged to. It could choose simply to decide based on the information provided to it by a complainant. If the committee concludes there likely was a breach, the committee must then decide if it is likely in the circumstances that the breach will continue or be repeated. If it accepts that, it must then decide if it is necessary to issue a contravention notice to remedy the breach.

Alleged breach of the committee code of conduct

• [30] The applicants allege the affected person breached item 5 of the code. That says a committee member must not cause a nuisance on scheme land or otherwise behave in a way that unreasonably affects a person's lawful use or enjoyment of a lot or common property. The applicants also cite item 6 of the code. That says a committee voting member must disclose to the committee any conflict of interest they have in a matter before the committee. The applicants want the body corporate to issue a 'breach' to the affected person.

• [31] The applicants reported the September 2023 incident to the body corporate the same day. They subsequently alleged the affected person had breached item 5 of the code in BCCM Form 1 notices they gave to the body corporate in December 2023 and May 2024. They assert the affected person did so by abusing, threatening and stalking them. I am unclear from the application if the applicants only assert a breach in regard to the incident in September 2023, or if they are claiming that previous or subsequent conduct is also in breach.
• [32] The applicants also assert the affected person has a conflict of interest regarding this matter but does not declare that conflict in meetings and the body corporate ignores it. This assertion was raised in the May 2024 BCCM Form 1 to the body corporate.

• [33] In regard to the incident in September 2023, the applicants provide an affidavit sworn by the first applicant on 15 February 2024 describing his complaint and asserting that it was not an isolated incident. The complaint alleged the affected person yelled and screamed and told them to stay away from his unit. It also refuted a contrary complaint made by the affected person. An unsworn statement from the second applicant said she was walking separately from the first applicant at the time of the incident but witnessed 'disgusting' language.
• [34] The application includes a statement (dated in July 2024) from a person who says they heard a 'torrent of abuse and foul language' directed at the applicants as they were arriving home, and the applicants were very upset by it. Another statement (dated in September 2024) from a person saying she and another (the person who made the first statement) witnessed the 'verbal abuse and intimidation' of both applicants during the September 2023 incident. The statement does not detail what was witnessed. In a statement to the committee in October 2024, the applicants indicate the second witness 'did not actually see what transpired'. The applicants further said there were 'several independent witnesses who heard the disturbance'. But the applicants provide no detail or evidence from those alleged further witnesses.
• [35] The submitted material includes vague references to alleged conduct by the affected person in mid-2020, but otherwise no detail is provided of any previous or subsequent alleged conduct. The application includes a statement (dated in July 2024) from a person who asserts they watched the applicants be 'victimised and continually bullied over many years' by 2 committee members. That statement does not identify the alleged offenders or detail the alleged conduct.
• [36] While the applicants allege the affected person has not declared a conflict of interest, they do not provide minutes or other evidence that the affected person voted on any committee motions relevant to the dispute with the applicants. On 13 September 2023 the body corporate said the committee had excluded the affected person from voting on the matter and he was not involved in its deliberations. It is evident that he did not vote on the substantive motion on 23 October 2024 when the body corporate resolved it would take no further action on the matter.

• [37] Item 5 of the code prohibits nuisances on scheme land and conduct that unreasonably affects others. That echoes the concepts of 'nuisance' and 'unreasonable interference' in section 167 of the Act. Previous consideration of the meaning of those terms may be instructive here.[22] 'Nuisance' requires a substantial degree of interference to what are considered reasonable standards for the enjoyment of premises. 'Unreasonable interference' does not require substantiality, but the alleged activity would need to be of such a nature or frequency as to interfere unreasonably with another person of ordinary sensitivity. Also, where there is an allegation of a breach of the code, it is arguable that the conduct complained of needs to have been undertaken by a voting member of the committee in their capacity as a committee member rather than in some other capacity.
• [38] Item 6 in the code reflects the statutory obligation on committee members to disclose to a committee meeting any direct or indirect interest in a matter being considered by the committee which may conflict with the appropriate performance of that member's duties about the consideration of the issue.[23] If a member declares a conflict of interest, they must not vote on a motion involving the issue. If the committee is considering a complaint about a person who is a member of the committee member, that member would likely have a conflict of interest that would require them not to vote on motions about the complaint.

• [39] It is not disputed that there was a verbal altercation between the applicants (or at least the first applicant) and the affected person in September 2023. From the brief and somewhat inconsistent information submitted in this application (and apparently to the body corporate), I do not consider the applicants have established the veracity of their version of the incident. And, even if the incident occurred exactly as they allege, the applicants have not substantiated that the incident described met the legal elements of a nuisance or evidences a material or unreasonable affect on their use of scheme land. The applicants have not provided cogent evidence to substantiate a history of behaviour, or that it has continued or been repeated.
• [40] Also, nothing in the submitted material suggests the alleged conduct arose in the exercise of the affected person's role as a committee member. It seems the affected person was only acting in the capacity of an owner and occupier during the incident in question.
• [41] The allegation that the affected person did not declare a conflict of interest on committee deliberations is wholly unsubstantiated.
• [42] In any event, the fundamental question here is whether the body corporate had an obligation to act on the applicants' complaint. Regarding item 5 of the code, the committee was only given bare claims of a single incident, and the circumstances were disputed. It was appropriate for the committee not to act until the Magistrates Court proceedings were concluded. The applicants provided little evidence until after that process, and even that was limited. I do not consider the volunteer committee was obliged to interview the applicants' claimed witnesses or otherwise undertake investigations beyond reviewing the information submitted by the parties. There was little prospect of the committee being able to determine what actually occurred even if they did investigate further. I do not consider the applicants have established that the committee failed to act reasonably in not investigating the incident further or in declining to submit a motion to a general meeting proposing that a breach notice be issued.
• [43] The body corporate does not have a statutory obligation to enforce the code. The applicants have not substantiated that it was required to act on this occasion. It was open to the applicants to submit a motion to a general meeting to start the process to remove the affected person from the committee but they have not done so.

• [44] The applicants allege the affected person has breached By-law 1. By-law 1.1 most relevantly provides that an owner or occupier must not use or permit the use of the lot or common property in a way that causes a nuisance or hazard or interferes unreasonably with the use and enjoyment of another lot, or interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property. The applicants want the body corporate to issue a 'breach' to the affected person.

• [45] The first BCCM Form 1 notice submitted by the applicants in September 2023 alleged a breach of By-law 1.1(c) and said they were 'approached from behind and abused and told to stay on our side of the road'. A second form dated in December 2023 did not refer to the by-law but related to the alleged code breach. It is difficult to decipher but appears to allege the affected person approached them, threatening and abusing them. A third form in May 2024 alleged they were 'abused, threatened and stalled' in breach of By-law 1.1(c). The May 2024 form alleged that 'behaviour' pursuant to By-law 1.1(c) has been repeated by the affected person over a number of years.

• [46] The evidence of the alleged by-law breach is the evidence of the September 2023 incident identified above. There are vague and unsubstantiated claims of previous incidents in mid-2020. The applicants do not claim that the affected person has engaged in any offending conduct since September 2023.

• [47] By-law 1.1 is identical to section 167 of the Act, except that it extends to owners as well as occupiers. I have noted above the relevant considerations for a claim of nuisance or an unreasonable interference.

• [48] As outlined in regard to the code complaint, the applicants have only provided evidence of a single incident of conduct by the affected person. The circumstances of that incident are disputed and neither version of events is substantiated.
• [49] Even if the affected person acted in exactly the way that the applicants allege, the applicants have not substantiated that the nature of the conduct rises to the level of a breach of By-law 1.1 in the circumstances. Moreover, the applicants have not evidenced that the disputed conduct has continued or been repeated.
• [50] More substantively, the applicants have not established that the committee had an obligation to issue a by-law contravention notice to the affected person or that it acted unreasonably in deciding not to do so. Even if the committee were satisfied, on the scant and contested evidence provided, that the affected person had likely acted in a manner that constituted a nuisance or an unreasonable interference, there was no evidence before it that the conduct was likely to continue or be repeated. That has been borne out by the lack of evidence of any further disputed conduct. In that context, it would arguably have been unreasonable for the body corporate to issue a by-law contravention notice to the affected person. The applicants have not substantiated that the committee failed to act reasonably.
• [51] It was open to the applicants to submit a motion to a general meeting proposing that the body corporate issue a by-law contravention notice to the affected person. They also could have lodged their own application directly against the affected person to remedy the alleged by-law breach. They have not done either.

• [52] The body corporate argues this application is frivolous, vexatious, misconceived or without substance has asked that its costs be awarded. The applicants do not comment on this.
• [53] The Act provides that an adjudicator may dismiss an application if satisfied the application is frivolous, vexatious, misconceived or without substance.[24] If an application is dismissed on that basis, the adjudicator can award costs (up to a maximum of $2,000) incurred by the respondent, the body corporate, and or an affected party for loss arising from the application.[25] An adjudicator may consider previous applications when determining whether to award costs.
• [54] This is not the first adjudication application brought by the applicants.[26] In one matter at a different scheme, in which the applicants sought to make the body corporate responsible for the actions of other tenants, I concluded the application was misconceived and noted that a body corporate does not have a universal responsibility for all activities undertaken by all persons within a body corporate.[27] Another application at that other scheme, which alleged the body corporate had failed to enforce the by-laws, was dismissed with the adjudicator commenting that it was misconceived and without merit.[28] An application involving Proud's Landing, in which the applicants wanted the body corporate to enforce parking by-laws, was also dismissed.[29] I dismissed a further application, which related to body corporate records, because the applicant's claims about the body corporate's legislative obligations were incorrect.[30] I declined to exercise my discretion to award costs on that occasion, but cautioned the applicants to take greater care in substantiating any further application.[31]
• [55] The applicants have again brought an application that is unsubstantiated. And it is difficult to see what utility there could be in the body corporate issuing code and by-law breach notices at this juncture, other than for the applicants to make a point. Despite the comments in the previous orders, the applicants do not appear to comprehend the role or the limits on the responsibilities of the body corporate. Furthermore, they do not appear to acknowledge their obligation to substantiate their claims in any application they bring. It also appears to me from all the submitted material that this application largely arises from the applicants' pursuit of a personal grievance against the affected person rather than a genuine desire to ensure the body corporate meets its statutory obligations. That is vexatious.
• [56] The body corporate did not provide an invoice for the legal fees it incurred in responding to this application but offered to do so if required. But the applicants have not contested the claim that the body corporate has incurred over $2,000. I am satisfied the engagement of solicitors to respond to this application, along with the body corporate's costs in distributing this application to owners, will have well exceeded the amount able to be awarded.

• [57] The applicants brought this application some 14 months after the incident they substantively complain of, despite having withdrawn their Magistrates Court complaint against the affected person about that same incident and despite providing no evidence of any subsequent objectionable conduct by the affected person. The applicants bear the onus of proof in this application. They have not satisfied me of their claims against the affected person. More importantly for present purposes, having regard to the circumstances and the evidence available to the body corporate, the applicants have substantively failed to establish that the body corporate failed to act reasonably in deciding not to pursue further action against the affected person. I consider the application is wholly without merit.
• [58] Furthermore, I am satisfied the evidence and argument in the application is so scant as to render the application without substance and, in the circumstances, vexatious. I am satisfied that it is appropriate to dismiss the application on that basis. Give the applicants' history of unsubstantiated and unmeritorious adjudication applications, and the impact of such applications on the body corporate, I consider an award of costs is now warranted.

[2] See sections 227, 228, 276 and Schedule 5 of the Act

[12] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342, Waters v Public Transport Corporation [1991] HCA 49

[13] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177, para 47

[14] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177, para 105

[17] Section 38 of the Accommodation Module

[22] See for example, Norbury v Hogan [2010] QCATA 27, Quinn v The Body Corporate of Sanctuary Bay CTS 6523 [2013] QCATA 25, Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130

[23] Section 58 of the Accommodation Module

[25] Sections 270(3) and (4) of the Act

[26] The applicants have also lodged 8 conciliation applications against the Body Corporate for Proud's Landing (application references 0488-2019, 0841-2019, 0080-2020, 0555-2023, 0614-2023, 0506-2024, 0889-2024 and 1197-2024).

[27] 414 [2013] QBCCMCmr 1

[28] 414 [2015] QBCCMCmr 402

[29] Proud's Landing [2020] QBCCMCmr 593

[30] Proud's Landing [2021] QBCCMCmr 221

[31] Proud's Landing [2021] QBCCMCmr 221, para 45