Ras v Community Corporation No 27140 Inc

[2018] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

RAS & ANOR v COMMUNITY CORPORATION NO 27140 INC

[2018] SADC 54

Judgment of His Honour Judge Slattery

15 June 2018

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW

Application for a review a minor civil decision made on 7 March 2018 concerning a dispute between lot owners of a community corporation registered under the Community Titles Act 1996. On 7 March 2018 Magistrate Gumpl made an order appointing Mr Gordon Russell under the Community Titles Act as Administrator of Community Corporation 27140. This appointment followed a termination by two prior body corporate managers of their own volition. Following an order of the Court, Mr Russell prepared a report to the Court concerning the history of the Community Corporation and made a list of recommendations. One of those recommendations was that the Community Corporation sell a portion of the common area in front of one of the lots pursuant to a valuation process. The learned Magistrate received the report, considered it and made orders in terms of the report, including approving the sale of a portion of the common area of the Corporation to one of the lot owners.

The applicant sought orders, inter alia, preventing the sale of a portion of the common area to the owners of unit 2. She also sought rescission of the order by the learned Magistrate that no party may bring new litigation for a period of 12 months. There had been no formal hearing before the learned Magistrate and there was no transcript of such hearing. This Court therefore embarked upon a hearing de novo of the issues in the matter.

The applicant and her mother continuously behaved in a manner seriously disruptive to the peaceful use and occupation by the owners of the other two lots of their premises.

HELD:

1.  Upon the application of the applicant, Ms Marilyn Ras is joined as an applicant in the proceedings.

2.  The decision of the learned Magistrate is reversed in part in respect of the decision to authorise the Administrator to convey a portion of the common area to a lot holder and to prevent the parties from commencing legal proceedings for a period of 12 months.

3.  The Court substitutes its own decision for the decision of the learned Magistrate.

4. The Community Titles Act did not empower the Court to approve the recommendation of the Administrator under the Act to sell a portion of the common area of the Corporation to one of the lot owners.

5. Under the powers prescribed under s 100 of the Act, the Administrator may resolve to sell to a unit holder a portion of the common area of a Corporation as if a unanimous resolution to that effect had been made by the members of the Corporation.

6.  In the whole of the circumstances pertaining to this Corporation, the decision of the Administrator to sell a portion of the common area was reasonable and was made in good faith. There was no evidence of the absence of good faith on the part of the Administrator.

7.  The purchaser of the portion of the common area is required to pay the costs associated with any necessary amendment of the deposited plan and the by-laws upon such purchase.

8.  The action is remitted to the learned Magistrate for further consideration under the leave given by this Court.

9.  No order as to costs.

10. Observations about the operation of the Community Titles Act 1996.

Community Titles Act 1996 ss 6, 10, 11, 12, 23, 28, 29, 31(4), 32, 34(2), 36(1), 39(1), 41, 52, 53(2), 71, 72, 73, 74, 75, 87(2), 100, 111, 133, 142, 149; Surveillance Devices Act 2016 (SA); Migistrates Court Act 1991 (SA) s 38, referred to.
Associated Provincial Picture Houses Ltd v Wednesbury Corp (Wednesbury Case) [1948] 1 KB 233; [1947] 2 All ER 680; Minister for Immigration and Citizenship v Li (2013) 249 CLR 132; Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd (2014) 313 ALR 469; Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118, applied.

RAS & ANOR v COMMUNITY CORPORATION NO 27140 INC
[2018] SADC 54

1. Application to review a minor civil decision. By application dated 22 March 2018 the applicant Nicolette Ras sought a review of the minor civil decision given by Magistrate Gumpl on 7 March 2018. The respondent to the application was Community Corporation 27140 Inc (the Corporation). In order to understand the application it is necessary to discuss some background.

2. By an originating application dated 22 December 2017 the Community Corporation 27140 Inc sought and obtained an order for the appointment of an administrator under the Community Titles Act 1996. It was supported by an affidavit of a member of the Corporation.

3. On 15 January 2018 Magistrate Gumpl made an order for Mr Gordon Russell, the proposed Administrator, to prepare a report and attend Court on 7 March 2018. The application was also supported by a bundle of letters between members of the Corporation and prior Corporation managers indicating that there had been some breakdown between the Corporation managers and members. The breakdown appeared to be between Ms Ras and the balance of the members of the Corporation. Those documents also disclose that two prior body corporate managers had terminated their contractual relationship with the Community Corporation of their own volition. The position between the Corporation members had become intractable.

4. Ms Ras, a member of the Corporation, filed an affidavit of 5 March 2018 in which she set out a series of issues that she wished to have ventilated. In summary, these were for the ratification of the minutes of the AGM for 2017, an assurance of equal treatment by the proposed administrator Mr Russell, allegations against Mr Russell in relation to his treatment of Ms Ras and for orders for the fining of other Corporation members for breaches of Corporation bylaws. These complaints include visitors parking on the common property of the Corporation, the use by the owner of lot 2 of the premises at lot 2, and the installation of CCTV cameras.

5. By order of the Court, Mr Russell had prepared a report. In the report, Mr Russell identifies the lot owners, the history of the disputes between the owners, some discussion about those disputes and a list of recommendations. Those recommendations were as follows:

   1.     That all video cameras installed in or about lot 3 are to be removed as per new legislation [for the avoidance of doubt, Ms Ras is the owner of lot 3].

   2.     That the by-laws be amended to prohibit video surveillance of other owners, their respective property and common property.

   3.     That the by-laws be amended to permit parking for a maximum of 10 minutes on the common driveway.

   4.     That the by-laws be amended to include a $500 maximum fine for breaches.

   5.     That all signs be removed pending the development of a policy

   6.     That the mother of lot 3 not attend meetings, even as proxy for the next 24 months

   7.     That all parties agree to no new litigation by any parties for the next 12 months

   8.     That the Community Corporation sell the common land (18sqm) in front of lot 2 garage subject to an independent valuation and the owners bearing all associated costs including but not limited to the survey, conveyancing and lodgement costs. (see annotated aerial photograph in this report)

   9.     That all meetings be chaired by an independent person for the next 2 years.

   10.     That no residents or owners use the common property for exercising

   11.     That no nuisance be caused to owners and residents through the playing of loud music.

   12.     That the right of owners to peaceful enjoyment is acknowledged by all owners.

   13.     That the Court appoint and [sic] Administrator for an initial period of 6 months to enable all the recommendations to be carried out.

6. I refer to recommendation 8 above. The Administrator has now entered into a specifically enforceable contract with the owners of lot 2 for the conveyance of the 18 square metres of the common area of the Corporation referred to therein.

7. The background to these recommendations is that the property at number 3 First Street Hallett Cove is comprised of three units constructed by the Housing Trust. Those units have all now been sold to private owners. The first private owner (of lot 3) was Ms Ras, the second, lot 2, was Mr and Mrs Blair Broadbent, and the third, lot 1, was Mr Ben Weedon.

8. At a time prior to 2017, community titles were issued in relation to the three units. A common area was declared. Lots 1 and 2 sit perpendicular to the front entrance off First Street. Lot 3, which is at the back of the block, sits generally horizontal to the front entrance to First Street. The frontages of lots 1 and 2 therefore face onto the common area. The frontage of lot 3 faces a portion of the side wall of lot 2 which is closest to it, and to the common area and driveway. The driveway into lot 2 is a continuation generally of the driveway from the roadside frontage down the common area driveway and into the area of lot 3. Each of the buildings, lots 1, 2 and 3, are of brick veneer construction with tiled roofs. Each has an adjoining garage and lots 1 and 2 formerly had a garden in front of and to the driveway side. Those gardens have now been removed and the areas formerly occupied by the gardens are sometimes used as extra car parks. In lot 3 Ms Ras has maintained a portion of her garden.

9. Sometime prior to December 2017 Ms Ras installed three video cameras around her property. Those video cameras filmed not only the area in front of the home of Ms Ras but also the activities of the owners of lots 1 and 2. The evidence discloses that these video cameras were used as surveillance of the activities of those owners. Also prior to December 2017, there were continual disputes between the lot owners about stationary vehicles on the driveway. Although the evidence discloses that this difficulty was more apparent than real, Ms Ras, as the owner of lot 3, appears to have had very high sensitivity to any parking on any part of the common area of the Corporation and such parking was the cause of extraordinary disputes between the lot owners.

10. Ms Ras’ mother, Ms Marilyn Ras, lives at number 7 First Avenue Hallett Cove, which is some 30 to 35 metres away from the First Street property. Ms Marilyn Ras spent a very large amount of time in and about the common area of 3 First Street and her vehicle was regularly driven up and down the driveway of 3 First Street. At no time during the course of evidence was I able to ascertain why Ms Marilyn Ras needed to traverse the driveway in her car so regularly. I will deal with that matter later. Ms Marilyn Ras purported to attend meetings of the Corporation, presumably as the proxy or nominee for Ms Nicolette Ras. I am satisfied on all the evidence of the owners of lots 1 and 2 which I accept that the attitude of Ms Marilyn Ras was no different from that of her daughter. That attitude rendered the meetings inutile.

11. I turn first to the report of Mr Russell. This document must be considered in the background of the very unsatisfactory circumstances as they existed on the property. The suggestion by Mr Russell that there be no new litigation by the parties for the next 12 months is practically justifiable, but the authority to make such an order is not explained. Prior to these proceedings, there had been at least three other proceedings between Ms Ras and the Corporation and its members. At any time that Ms Ras encountered what she considered to be difficulties, she commenced legal proceedings. She also continually threatened legal proceedings, threats which she readily carried out. I will deal later with the question of the sale of the common land in front of the lot 2 garage. The other items relate largely to the appointment of an administrator as the independent person to chair meetings. The aspect of residents using the common property for exercising is something of a safety measure. For reasons which are unclear, Ms Ras used the driveway fence as a place at which she would do calf stretches. This occurred quite often. There is no clarity in the evidence about why she chose that spot to do calf stretching when she had the same type of fence within her own property boundaries.

12. The report of Mr Russell is Exhibit D3 in the proceedings. The learned Magistrate received the report and considered it. There apparently was a hearing before the learned Magistrate on 7 March 2018. I have not seen any transcript of the hearing. Ms Ras did not attend the hearing. She alleged before me that she understood from Mr Russell that she only needed to file her response material before the Court (without attendance and without therefore speaking to that material). She said that she obtained this understanding from Mr Russell. Mr Russell emphatically denied that he gave her any such understanding. Mr Russell informed her that she could make written submissions or attend the court as she saw fit. I accept the evidence of Mr Russell. The assertion by Ms Ras that she was told by Mr Russell that she did not need to attend is inaccurate and without any credibility.

13. Although there is no evidence of there having been any hearing before Magistrate Gumpl, on 7 March 2018 Magistrate Gumpl made the following order:

    Order:

    The recommendations of Mr Gordon Russell in his report are agreed to, accepted and endorsed. Paragraph 8 is amended to include the words ‘the owners of unit two’.

    Mr Russell is appointed as administrator for a period of six months forthwith.

    Ms Ras, owner of unit no.3, is ordered to remove any cameras attached to the property, either inside or outside the property that attempts to photograph anyone outside the property within 48 hours from Thursday 8 March 2018 at 10 am. Any material that has been photographed using the video/CCTV cameras is to be removed from the file.

    Any unauthorised signage erected by or on behalf of Ms Ras is to be removed within 48 hours from Thursday 8 March 2018 at 10 am.

    Should the surveillance cameras and signage not be removed within the 48 hours, the administrator is authorised under the Act, and pursuant to the order of the Court, to arrange removal with police presence.

    Unit holders no.1 & 2 wish it to be noted that Ms Ras and her mother engage in menacing and harassing behaviour and ask the Court to review such behaviour and possible consequences in consultation with the administrator. Mr Weedon is urged to obtain independent legal advice regarding possible claims in nuisance and torts against Ms Ras.

    Adjourn to 18 September 2018 at 10 am for directions.

    Liberty to apply.

    **Court to forward a copy of today’s orders to the parties.

    **A copy of today’s sealed order will be forwarded to Mr Russell via email and by post.

14. In the application to review a minor civil decision, Ms Ras complains of the following orders:

    ·Ms Ras, owner of lot 3, is ordered to remove any cameras attached to the property.

    ·That the Community Corporation sell the common land (18sqm) in front of lot 2 garage.

    ·That no residents or owners use the common property for exercising.

    ·That all parties agree to no new litigation by any parties for the next 12 months.

15. At the hearing before me, Ms Ras withdrew her application in respect of the aspect of exercising on the common property. She relevantly now seeks orders as follows:

    ·Re-instatement of cameras on lot 3.

    ·Prevent the sale of common land to owners of unit 2

    ·…

    ·That any party can bring new litigation as required.

16. She then set out the following grounds of appeal:

    ·The Court Appointed Administrator (Mr Gordon Russell) did not give me the opportunity to respond to his recommendations prior to his lodgement of Recommendations to the Magistrate’s Court.

    ·Mr Russell had previously advised me that he would give all owners the opportunity to provide feedback on his Recommendations prior to lodging them to Court, however, he did not do this.

    ·I received Mr Russell’s Recommendations very close to the Court date and he did not give me the opportunity or time to respond to his Recommendations.

    ·I was told by Mr Russell in writing that I did not need to attend the directions hearing and I lodged a Written Response to the Court prior to the hearing as he suggested.

    ·Magistrate Gumpl made orders and endorsed Mr Russell’s recommendations in the first directions hearing, without giving me an opportunity to present my side/evidence and there was no trial on these matters.

    ·The re-instatement of my cameras on lot 3 is required for the protection of my lawful interests.

    ·That the sale of common property be prevented as I regularly use that area. It would deprive me of my lawful right to use that part of the common property and will affect the resale value and aesthetics of the property. It will create a nuisance in that area. The Court Appointed Administrator (Mr Gordon Russell) did not consult with me on this matter prior to sending his recommendation to the court. This decision to sell this land is unreasonable, oppressive and unjust.

    ·To order that all parties agree to no new litigation by any parties for the next 12 months is draconian.

17. I refer to the first four grounds. I have now heard evidence from Mr Russell, Ms Ras and the other lot owners. I am satisfied on the evidence that every opportunity was given to Ms Ras to respond to the recommendations, to provide feedback on those recommendations and that Mr Russell did not tell Ms Ras that she did not need to attend the hearings and could rely only upon her written response prior to the hearing. I find that none of those grounds of appeal are made out.

18. In relation to the next ground of appeal, I find that Magistrate Gumpl did make the orders and endorse Mr Russell’s recommendations. I reject the assertion that he did so without giving Ms Ras an opportunity to present her side and evidence. It is unclear to me whether there was a trial on those matters.

19. Ms Ras argues that the reinstatement of cameras on lot 3 is required for the protection of her lawful interests. I will deal with that matter later. Ms Ras also argues that the sale of the common property will unlawfully interfere with her right to use the common property, there was no consultation about that fact and the decision is unreasonable, oppressive and unjust. Finally, I will deal with the order that all parties agree to no further litigation later in these reasons. Notwithstanding the rejection of some of these grounds of appeal, it is necessary to review this matter in detail. There are significant legal issues arising in this matter which require close consideration.

20. Earlier I indicated that this was the fourth action between Ms Ras, the Corporation and the other unit holders. The details of those actions are as follows:

21. 1.     Action 299 of 2014 commenced by Ms Ras against Corporation 27140, the Housing Trust, Blair and Susan Broadbent separately, concerning building issues and general matters. The application was dismissed.

22. 2.     Action commenced 24 September 2015 in which Ms Ras seeks to reinstate the Court action and complains about tradesmen parking in the driveway on the common area. The action was brought against Mr Broadbent.

23. 3.     Action 16 November 2016 number 4031 of 2016 concerning personal delivery vans being parked on the common area. Ms Ras was the plaintiff and Mr Blair Broadbent was the defendant.

24. 4.     Action 4595 of 2017, the subject of this application. This is the fourth time that the parties have been embroiled in legal proceedings at the suit of Ms Ras.

    The evidence before the Court

1. Ms Ras gave evidence. She described the units and emphasised that she used the driveway in front of unit 2 when entering the property to do a three-point-turn and back into her own property. That is the area that Mr and Mrs Broadbent wish to purchase. Ms Ras tendered Exhibit P5. The first page of the exhibit is a copy of the advertisement seen by her at the time that she purchased the property. She has written the word ‘park’ on the first page adjacent to the outside wall of the garage on lot 2. The evidence of Ms Ras is that that area was commonly used as a car park which is inconsistent with the entry recorded by her on the first page of Exhibit P5. She complained that if the area in front of the garage of lot 2 was sold as proposed, then she would not be able to take access to her front door and she would not be able to park a vehicle on the outside of the garage wall of lot 2. In her evidence she contended for and she was quite protective of these rights. The second page of Exhibit P5 is a letter from Ms Ras to Smallacombe Real Estate. The Court was not informed of the role played by Smallacombe Real Estate. The letter reads as follows:

   … Regarding Unit 2, 3 First Street Hallett Cove:

   I recently purchased Unit 3 in this block and respectfully request that you advise all potential buyers that the area in front of the Unit 2 garage is in fact common property, as per the plan.

   I have seen and overheard a few people looking at Unit 2, discussing parking their vehicles in front of the Unit 2 garage.

   I have many vehicles on my property and require access to the common areas to get them in and out and it is best to advise potential buyers before they purchase the unit than to have the issues with this afterwards.

2. There is no evidence as to what vehicles Ms Ras was referring to or why, for example, she would have many vehicles on her property.

3. Ms Ras then described to me by reference to two photographs in Exhibit P4 (a disk of photographs) the method by which she would take access to the alleged car park on the outside wall of lot 2.[1] She described the situation by reference to the photograph at the top of the third page of Exhibit P5. That page shows a red marking on the ground being the area sought to be purchased. It then shows what appears to be a small picket fence and a picket gate outside of the driveway of lot 3, an open area between a post of the picket fence with a white object on top of that post to the garage wall of lot 2. There is a silver car parked in that place. There is also a dotted line indicating as I understand her evidence what appears to be foot access from the common area to the front door of lot 3.

   [1] T20.29 et seq.

4. The very clear impression that I obtained from the evidence of Ms Ras[2] was that she was using the area on the outside of the wall of the garage of lot 2 as a parking area and that she took foot access to her house through the same area. The conveyance of the area of land as proposed by the Administrator would restrict the passage of vehicles over that piece of land and so remove any possibility for Ms Ras to conveniently use that car park or to use the land for pedestrian access. The same impression was conveyed by the second photograph on p 3 of Exhibit P5. The very clear impression given to me in this evidence is that the relevant car park and the pedestrian access were regularly used and were essential to Ms Ras’ enjoyment of lot 3.

   [2] From T20 and following.

5. I will later discuss this aspect of the evidence. There was a second hearing before me in which Ms Ras tendered video evidence of the use of this area as a second car park. The video (Exhibit P14) does not disclose a second car parking space that is usable. On my viewing of this video, such a suggestion borders on risible.

6. There is a peculiarity about these photographs. As I have said, there is a post in the ground, a small picket fence adjacent to it, grading down to gates across the driveway. My clear impression was that the small picket fence grading down to the gates and the gates had no practical utility. This was because the space between the post at the fence and the garage of lot 2 was completely open. There was no practical explanation that I could see for the existence of the gate. It could not conceivably have any practical purpose except to exist. Eventually, when I pursued questioning of Ms Ras about this, she informed me that previously, between the post and the garage wall of lot 2 there had been a wooden slatted fence. I later learned that this fence was 2.1 m high. I also later learned that the white object on top of the post in the top photograph on p 3 of Exhibit P5 is a camera. I was told none of this by Ms Ras in her evidence. I was able to identify the wooden slatted fence on the fourth photograph on the fourth page of Exhibit P5 and the second and third photographs on the fifth page of Exhibit P5. The next page of Exhibit P5 is a copy of orders made by the Magistrates Court (presiding officer Mr Robinson) of 10 June 2014. Those orders read as follows:

   1.     The Community Corporation 27140 will cause to be erected a sign on the common property which ready [sic] “Residents and Authorised Vehicles Only.”

   2.     If an owner of a lot is aware that a delivery vehicle needs to enter the property (large items or multiple items) they will advise the other unit holders.

   3.     The Applicant is authorised to erect a gate across the driveway of lot 3 of the Community Title, within lot 3’s own property and on the condition that the gate matches the existing timbered slat privacy screen.

   4.     If non residential activities are being conducted on the second respondent’s property, it is agreed the Second Respondent can do so on the basis that any use of common property does not unreasonably interfere with the use and enjoyment of common property by other persons.

   5.     Community Corporation 27140 will issue a written reminder to residents of all units in the Community Corporation not to park on common property, or overhang common property in the area in front of the garage of unit 2.

   6.     The Second Respondents can use an electrical extension cord for the purpose of powering the fridge in the back of their van and will install a safety power switch such that in an event it is removed the power is automatically shut down as suggested by the Court expert, Mr Robinson.

   7.     Community Corporation 27140 will issue a written reminder to all residents of the Community Corporation to take care when approaching the boundaries of other lots with their vehicles.

   8.     A 10 km per hour sign will be erected at the entrance of the units.

   9.     The brush fence above the privacy screen on the boundary of unit 3 can remain as a temporary measure only. The Applicant considers it will take 6 months for plants on her property to grow to a height so she can then remove the brush fencing. This will be reviewed at the next Annual General Meeting.

   10.     The freestanding paling structure inside the existing divisional fence between lot 2 and lot 3 can remain as a temporary measure only. The Applicant and the Second Respondents agree that a colour bond fence of 2.1 metre in height matching the existing fence will be erected in place of the current temporary structure with the cost shared equally between the Applicant and the Second Respondents. The Applicant agrees to obtain two quotes from competent contractores to supply and install the fence. Once the Applicant and Second Respondents have agreed the quote and structure the Applicant will then engage the contractor to supply and erect the fence as soon as possible.

   11.     The Applicant has installed a CCTV camera on her property. The Respondents agree that the CCTV camera can remain in situ on condition that the CCTV footage captures her own property and common property only.

   12.     On signing these Consent Orders, the Applicant’s application will be dismissed with no order as to costs.

7. The orders were a finalisation of the action commenced by Mr Ras against the Corporation and the other lot owners in 2014.

8. I questioned Ms Ras about the slatted screen fence.[3] She told me that the owners of lot 2, the Broadbents, had voted down the slatted screen fence because they wanted to drive onto her property. She then said to me[4] that as a result of some bylaws that had been passed by the Administrator, it was necessary for her to take down the wooden slatted fence. The relevant bylaw reads as follows:

   6(d) Emergency Access. The occupier of a lot must not restrict access for emergency vehicles to their lot, this includes by the use of gates, rope, bunting, mesh, pot plants and any other objects that may inhibit access to their lot at all times.

   [3] T24.10 et seq.

   [4] T24.20.

9. In her evidence Ms Ras told me that she had taken down the slatted fence at the time she was made aware of this bylaw. She said to me in her evidence that she had taken down the wooden slatted screen fence in order to comply with this bylaw.

10. A reading of the bylaw does not indicate any obligation upon her to take down the fence. That fence did not restrict access for emergency services when there were gates across the driveway that could be opened. The slatted fence was not an object that inhibited access in light of the existence of the gates. In her written case before the learned Magistrate, she wrote as follows:

    Emergency Access:

    This discriminates against my lot as I have Court Approval for my gate. The other two lot owners park their cars in their garden beds which restricts access for emergency vehicles.

11. In her evidence, she made constant reference to this document as being the justification for the removal of the fence. At that stage of the proceeding, I could not comprehend why it would be that this bylaw had any connection with the removal of the fence. I do not accept this evidence of Ms Ras as it lacks apparent credibility.

12. Ms Ras then informed me that the fence had been erected to keep the Broadbents (the owners of lot 2) out of her property. She alleged that the Broadbents were using her property as an extension of their own. She said that one of the points of greatest concern was that Mr Broadbent operated a vending machine business and used his garage as a storage point for the product to be used in the vending machines. She thought that the arrival of the Broadbents and the use of their garage in this manner was the source of all of the animosity. This was because the common areas were used for loading and unloading of stock and this meant that there was some restriction on the use of the driveway which caused her extraordinary distress. She complained[5] of the nature of the activities, including that they commenced in the early morning and sometimes went late into the night, the use of wheelie bins to store rubbish and the noise created by the use of wheelie bins to store rubbish generated from the business. This, she said, meant that the Broadbents were using her property as an extension of theirs. That is why she put up the slatted screen fence. She also had to erect a number of permanent lights and the fence created difficulties for her using the common area, particularly the driveway leading up to the garage on lot 2 so that she could reverse back into her own driveway.

    [5] T27.10 et seq.

13. Ms Ras gave evidence that she became very concerned about the behaviour of Mr Broadbent. She described him as a ‘peeping Tom’ and suggested that he had invaded her private space. That is why she installed CCTV cameras on her home, on her fence and other places. She agreed that she had three cameras on the premises. She wanted to capture the whole of the area of the common property and the area immediately in front of her home. This was because of the history of the harassment by the Broadbents and their unlawful trespasses.[6] She also says that she was aware that Mr and Mrs Broadbent filmed what she was doing, harassed her in general and treated her very poorly.[7]

    [6] T31.35.

    [7] T32.15.

14. Ms Ras said that she would oppose any bylaw in relation to a 10 minute standing of vehicles in the common area because it is constantly abused by the owners of lots 1 and 2 and particularly the owner of lot 2. She said that on a number of occasions tradesmen came into do work on lot 2 and left their vehicles in the common area which prevented access to her unit.[8] This was a cause of great distress to her. She said that the existence of the bylaw meant that it was merely abused by the other lot owners.

    [8] T35.18.

15. As I listened to Ms Ras give evidence, I continued to be unable to understand why it was that the slatted screen fence was removed and the gate was left. At T37.17-.32, the following exchange occurred:

    Q.But I'm just asking you why you've left the gate there. The gate is serving no useful purpose.

    A.Yes, the thing is if the gate's not there Mr Broadbent's going to come driving into my property like he did before. So - and I want to keep my options option so that if I do sell my property and that slat screen goes back we've got then that area in front that if it's sold to young family with children that area is then enclosed if they want to put the slat screen back. So I'm keeping my options open at this stage. I'm also utilising that extra car park in the way that it should be so -

    Q.What extra car park, between two and three.

    A.Yes, so this is the car park here which access will be cut off if that area in front of lot two gets sold.

    Q.I understand.

16. The inference arising from the evidence of Ms Ras was that she wished to continue to utilise the extra car parking space on the outside wall of the garage of lot 2 and through this and other evidene I was given to understand that this was a long standing arrangement. She does not want to be cut off from that car park. She does not want anyone to utilise any part of her property and that is why she keeps lights on all night.

17. Ms Ras then tried to explain how it would be that all of the other lot owners could behave properly such that everyone could live in harmony.[9] She described all of the activities of the other lot owners as constituting a nuisance in respect of every aspect of their occupation and use of their premises.

    [9] T40.14-41.34.

18. My very clear understanding obtained from the evidence of Ms Ras was that she was attempting to convey to me that she wanted to peaceably enjoy her property at lot 3, 3 First Street Hallett Cove, that she wished for the other lot owners to enjoy their premises in the same peaceful way and that the other lot owners should curtail all of their activities which in any way are a nuisance and interfere with the enjoyment by Ms Ras of her property. Inferentially at least, there could be no criticism of her behaviour and her existing usage of her property and the car parks was a long standing arrangement.

19. Ms Ras was cross-examined. Mr Russell was present in the Court. As a result of the expression of his views following his enquiries about which Ms Ras had given evidence, I allowed him to ask some questions in cross-examination. Mr Russell took Ms Ras to the relevant documentation concerning the recommendations that he had made to Magistrate Gumpl. Ms Ras agreed that she was given an opportunity to respond to his recommendations. Any assertion to the contrary was untrue. He wrote to Ms Ras on 28 February 2018 in these terms:

    Please find enclosed my report to Magistrate Gumpl. If you have any comments or concerns I suggest you write to the Magistrate quoting the action number and/or attend the hearing on March 7^th.

20. Further, in answer to Mr Russell, Ms Ras agreed that it was her choice not to go to the hearing before Magistrate Gumpl. She chose not to take time off work, albeit that she had on at least three prior occasions been at the Court during work hours and sought orders in her favour in relation to the conduct of the Corporation’s business. In answers to questions from me[10] she agreed that it was her conscious decision not to attend the Court. She agreed that she had accused Mr Russell of misrepresenting the truth when she said in her documentation that she was told by Mr Russell in writing ‘… that I did not need to attend the directions hearing.’[11] When asked to explain the inconsistency between the content of the letter and her own statement, she only went to the letter. I am satisfied the letter says no such thing. The letter advises that if she wishes to pursue the matter she may make submissions and attend court or just attend court. She attempted to suggest a clear inference that arose from the letter was a direction to her not to attend court. I reject any suggestion of such an inference. It does not arise. I consider that the assertion about a direction by Mr Russell in writing not to attend the court hearing is baseless and without any credibility.

    [10] T44.12 et seq.

    [11] T44.37.

21. Ms Ras was then cross-examined by Mr Weedon. Mr Weedon put to Ms Ras the proposition that both she and her mother traversed, in their separate vehicles, the common area at least a dozen times a day and hundreds of times per year. He showed to Ms Ras the series of photographs which became Exhibit D6. Particular reference was made to pages B1, B2 and B3. Photograph B1 of Exhibit D6 shows the vehicle owned by Ms Ras, a blue Toyota Echo vehicle parked on the verge immediately in front of her front door. It faces onto the area immediately adjacent to the garage door of lot 2. Parked immediately to the right of that vehicle (as you look at the photograph) is a silver Toyota Corolla. It is parked at a diagonal. It is parked facing more towards the garage door of lot 2. This is a peculiar method of parking. Both vehicles are parked immediately in front of lot 3. Only one, the silver Toyota Corolla, is parked slightly across the driveway into the garage area of lot 3. The silver Corolla belongs to Ms Marilyn Ras. There is no apparent reason why two vehicles should be parked in the way that they are and why the driveway was not used. The peculiarity of that aspect was only deepened when, by reference to photograph B2 of Exhibit D6, a photograph of the same silver Toyota Corolla vehicle owned by Ms Marilyn Ras, taken two days after the orders of the learned Magistrate, the vehicle is stationary opposite lot 1, it has its driver’s door open and its boot open. There is no one in attendance of the vehicle.

22. In her later affidavit, Ms Ras says that she was the person using the Corolla vehicle on that day. She had been away fishing. That however is irrelevant to the principal issues, namely: the positioning of the vehicle on the common area and the failure to use the space in lot 3. These photos are merely symptomatic of the principal issues: the failure or inability of Ms Ras and her mother to use the common areas except in the most disruptive and capricious way possible with the greatest inconvenience to other residents.

23. Then, in photograph B3, the blue Toyota Echo belonging to Ms Ras is parked facing into the garage door of lot 2. There is no one in the vehicle. It is plainly blocking another vehicle parked adjacent to lot 2. Photograph B4 shows the silver Toyota vehicle having been reversed into and adjacent to the garage area of lot 3. Photograph B5 shows the same silver vehicle parked facing towards the garage door of lot 3.

24. Mr Weedon asserted that the vehicle owned by Ms Marilyn Ras traverses the common area driveway at least a dozen times a day and hundreds of times per year. He also asserted that the blue Toyota Echo motor vehicle traversed the same area for the same period of time. On first hearing them, I considered that such propositions were doubtful, if not untenable; that first impression is completely wrong. Although Ms Ras emphatically denied the propositions put to her by Mr Weedon, I am satisfied on the whole of the evidence that the vehicle owned by Ms Marilyn Ras and the vehicle owned by Ms Ras, combined, traverse that common area between 10 and 20 times per day. Further, based upon the whole of the evidence which I have heard, I have no understanding why it would be necessary for Ms Marilyn Ras to so regularly drive her vehicle up and down that driveway.

1. Having heard the propositions put by Mr Weedon to Ms Ras, I looked again at the evidence concerning the demolition of the slatted screen fence. I first questioned Ms Ras[12] about why she took down the slatted screen fence and left the picket fence and gates in position. She said that it only had a connection to the emergency bylaw issue that I have previously referred to and which does not offer any justification for the removal of the slatted screen fence.[13] I then learned following questions from Mr Weedon that the slatted screen fence had only been removed 10 days prior to the hearing. Ms Ras attempted to justify that removal by saying the bylaws had been implemented only recently. Thus, contrary to the impression that Ms Ras attempted to create in her evidence, the car parking space shown in her photographs was not regularly used as a carpark because of the fence. The evidence concerning this removal and allegedly justified by the bylaw is, in those circumstances, without any credibility.

   [12] T51.9.

   [13] T51.9-.15.

2. Ms Ras could not explain what the silver car was doing on her premises except that her mother was delivering some shopping to her. She said that her mother did some practical work around the property. Again, upon initial consideration there may have been some credibility in that explanation. However, when it is know that Marilyn Ras lives at 29 South Avenue Hallett Cove, between 30 and 50 metres from the front entrance to 3 First Street Hallett Cove, this explanation loses much of its credibility. The evidence discloses that Ms Marilyn Ras owns a four-bedroom home at 29 South Avenue Hallett Cove and that in order for her to drive up and down the driveway of 3 First Street, it would be necessary for her to take her vehicle out of her own driveway, drive it about 30 to 40 metres to the driveway of 3 First Street and drive up and down the driveway of these premises. Exhibit D8 is a photograph of the front entrance to 3 First Street and the fence of 29 South Avenue owned by Mr Marilyn Ras. Ms Ras attempted to rationalise the behaviour of her mother (which I am satisfied she knew all about) by suggesting that her mother needed to deliver shopping. She said that as a single woman she had a lot of shopping. There is no substance to that assertion. I asked her why she could not, as part of her regular fitness training regime, walk the 30 or 40 metres to her mother’s front gate and collect her shopping. She could not explain why she did not do this, notwithstanding that the evidence clearly is that Ms Ras is a person very devoted to her own fitness.

3. Mr Weedon then put the proposition to Ms Ras that she has now chosen to block the Broadbents’ driveway while there are other cars in front of their garage. He put to her that the taking down of the fence 10 days before this Court hearing was not a mere coincidence and the suggestion that it was necessary to take down the fence was irrational. Ms Ras denied that proposition. When she was asked whether she blocked the driveway numerous times per year, she said that she would not call it an obstruction—she needs to use the driveway. However, she could not explain why it would be that she would not park her car in the area immediately in front of her own garage behind her gates and take whatever was in her car into her home. She also could only explain the use of her mother’s car and the presence of her mother’s car in the property because of her mother doing some shopping for her and needing to transfer the shopping out of the car to the house.

4. She was then asked about the number of CCTV cameras that she had on the property. She was shown the first photograph of Exhibit D6. It is the fence post. It has on top of it a camera which faces both down the common driveway and down the driveway towards her front area. The same is shown on Exhibit D6 photograph A2. Photograph A3 shows the same camera pointing towards lot 3; this shows that the camera is manoeuvrable. Although Ms Ras denies that there was any electronic connection between the cameras (through Wi-Fi or any other methods) and her mother, she was not able to explain how it would be that her mother arrived on the premises immediately after the time that any of the other lot owners came onto the premises with their vehicles. This proposition was not denied by Ms Ras.  It was a constant occurrence that Ms Marilyn Ras would come onto the premises immediately following the arrival back of the owners of lots 1, 2 or both of them, in their vehicles, they having earlier left the premises. The suggestion was made to Ms Ras that there plainly was an electronic connection between the cameras and either the phone of Ms Ras or the phone of Marilyn Ras. Ms Ras said that there was no connection to the phone of Marilyn Ras because it was, as she described it, a ‘dumb’ phone. She explained that a ‘dumb’ phone had no capacity except to make and receive phone calls and messages. She did not suggest that there was no electronic connection (by Wi-Fi or any other method) between the cameras and her own phone. There is a suggestion which almost reaches the status of inference that that is the case.

5. Ms Ras was also cross-examined by Mr Broadbent. He asked her questions about all of her court proceedings that she had brought, he asked about the fact that she continually played basketball in the front of her premises and that she had allowed her niece and nephew to do so. She agreed with those propositions. She denied that any activity using a basketball could have caused any nuisance to Mr and Mrs Broadbent, the owners of lot 2. However, in answer to a question from Mr Broadbent, she referred to the orders made by the Court on 10 June 2014 which gave her permission to build a gate across the driveway. This order required the gates to match the existing slatted screen fence. It follows that the slatted screen fence was in existence from at least June 2014 and more likely 2013. This is sufficient proof that it had been in existence for at least four years and perhaps longer prior to the orders made by the Magistrate on 7 March 2018.

6. Although she was present, Ms Ras did not call her mother, Marilyn Ras, as a witness.

7. Mr Gordon Russell gave evidence. I find that Mr Russell was a witness of credibility and I accept his evidence. He is the Administrator. He explained to me his history and the reasons why he becomes involved in these types of disputes. He is the person who prepared the report (Exhibit D3) delivered to Magistrate Gumpl and based upon which Magistrate Gumpl made his orders. I asked him questions in relation to recommendation six that Marilyn Ras not attend meetings. He said that he was informed that she was disruptive. On the question of legal proceedings, he thought that Ms Ras had become a serial litigant and that everything she did raised the temperature in the group, destroying goodwill and makes everything difficult to resolve.[14]

   [14] T70.38.

8. In relation to the sale of the common land, Mr Russell said it is extremely unusual to have a garage and then common property running right up to the garage. He said commonly in places such as this, by owning property in front of the garage door people usually have an ability to be able to park their vehicles. This is particularly so when there are two vehicles. One is in the garage and one is parked in front of the garage door. He said the greater concern is that the space is being occupied by other parties (viz photograph B3 of Exhibit D6) and that made it impossible for the owners of unit 2 to actually get to their garage. His suggestion was the usual logical solution.[15] Mr Russell was very strongly of the view that this was the only sensible and reasonable solution to this problem. In forming that view he called upon his many years of experience in the industry and, as well, those many situations where he has been appointed by the Court to resolve such difficult situations. I accept this evidence.

   [15] T71.14-.22.

9. He then addressed the existence of the slatted wooden fence. Mr Russell said that after his recommendation to sell the land had been made, the fence came down immediately. He considered this was an attempt to create a case about access when in fact there was no concern about access. He then said his recommendation about the purchase of the land was driven by the fact that he was satisfied that the access of the Broadbents to the unit 2 garage was so badly affected by the absence of any proprietary right in the area in front of their garage combined with the behaviour of Ms Ras and Ms Marilyn Ras that it needed protection by the purchase of some common area land. He also could not see any disadvantage to unit 3 because Mr Ras continued to have direct access through the driveway to the front of her property. The vehicles can be driven straight in and reversed straight out. He also thought that the vehicle owned by Ms Ras could be manoeuvred around her front yard anyway.[16]

   [16] T72.6-.23.

10. He was then asked about the process of his decision making and his recommendations having regard to the loss of what was described as the car park next to the garage for unit 2. When asked if that would be a deprivation of any entitlement for unit 3, Mr Russell said that there was a large slatted screen fence right in front of the area. When he made his recommendations he could not see how it would disadvantage anyone. He saw the removal of the slatted fence as being merely opportunistic.

11. Ms Ras then gave further evidence and repeated that she removed the slatted screen fence only for safety issues. I agree with the evidence given by Mr Russell that due to the existence of the slatted fence for at least four and maybe five years, that area could never have been used as a car park; if it had ever been used as a car park it was not used as such for a very long time and the suggestion of a safety issue was a mere convenience. That is only exacerbated by the oddness of the appearance of the remaining small picket fence and the gates.

12. In cross-examination by Ms Ras, Mr Russell said[17] that there was an opportunity at the hearing in the Magistrates Court for people to make submissions. Plenty of time was given by the Magistrate. There was plenty of time to discuss his report. He provided the report at the request of the Court and not at the request of the Corporation.

    [17] T81.24.

13. Mr Weedon gave evidence. I found Mr Weedon to be a witness of credit and I accept his evidence. There was nothing in his evidence which suggested that he was embellishing his evidence. He gave a history of purchasing lot 1 in about 2014. He said that from the outset, there were significant issues with Ms Ras. He said that as a Corporation they were ‘sacked’ by two strata management groups because of the difficulties encountered with Ms Ras. The second, Whittles, left because they could not afford the damage to their business being done by an unnamed blogger on their website criticising them, which criticism ended as soon as they resigned. The whole thing became untenable because the parties were always in a disagreement about general things and then behavioural things happened.

14. Mr Weedon informed me that he was an admitted practitioner of the Court. He does not practise; he is employed by the government and is a writer in his spare time. He is sensitive to noise and said that he could hear the noise being generated by Ms Ras in her front yard which was complained of by the Broadbents.

15. He said there were many other aspects of the most extraordinary type which were nuisances. He said, for example, that over a two to three week period, on every day, very loud techno music was played in Ms Ras’ home. It was played when she was not at home. Marilyn Ras would attend the home, turn on the music and then leave the home. Ms Ras did not deny these allegations. He said that there were constant threats to be sued. He was told by them on a number of occasions that Ms Ras and her mother have more money than everybody else and she will sue them when she wants. Every piece of correspondence and every discussion always ended with Ms Ras saying that if the others do not agree, she will sue them.

16. He said that on weekends Ms Ras drove up and down the driveway at least a dozen times a day. Marilyn Ras did the same. This also happened when Nicolette Ras was at work. On occasions, Marilyn Ras would bring her vehicle down the driveway, swap her vehicle for the Toyota Echo vehicle owned by Ms Ras, drive it out, come back and swap it again. At that time she would walk up and down the driveway on the common area and stare in people’s windows. An example is Exhibit D7 which consists of two photographs of Ms Marilyn Ras waving to the photographer whilst she was standing in the common area driveway. Why she would be there and why she would be doing that is not explained. Also, why she would be there in a motor vehicle when her home is only some 30 to 40 metres away is unexplained. Marilyn Ras was not called in evidence to explain any of this quite peculiar behaviour.

17. Mr Weedon said that Ms Ras and Ms Marilyn Ras constantly park their vehicles in the driveway. He said it happens every day but it is particularly bad on weekends. On the Sunday before this hearing, a neighbour was asked to keep a count of the number of times Marilyn Ras drove up and down the driveway. The count was 40 times. This included to change motor vehicles. Later evidence suggests that this count may not be accurate. As I am unable to make a finding on it, I will leave it to one side. Mr Weedon said that Ms Marilyn Ras removed the slatted screen fence. This was about a week or so after the court date on 7 March. She did it using an angle grinder. He said the fence was there for four or perhaps five years before that and in the whole of that period, the area next to the garage on lot 2 was never used as a second car park. He said the last time he saw anything happening in there was many years ago. Recently there was a six-piece outdoor setting and some lawn there. That was about a month and a half ago, but for many years before that there was a fence there. He was certain that that fence was removed only 10 days prior to the hearing before me. That fence was taken down without any order of the Court.

18. He supported the suggestions made by the Administrator only because it would ensure, to some extent, that the driveway would not be blocked. He said that merely because a person was able to park in that area for 10 minutes was a practical measure. It meant that a vehicle could be parked, something could be taken out of the vehicle and transferred to another place. He said that this right is being abused by Ms Ras and Marilyn Ras and they have, on many, many occasions merely blocked the driveway and walked away from their vehicles. Also, the owners of Lots 1 and 2 have been abused when anybody else brings a vehicle into the driveway. He gave the example of a friend who arrived with a white tip-top tray truck at about 11.00 am to drop off a desk. Within minutes, Marilyn Ras arrived at the property screaming at the owner of the truck to get the truck off the property.

19. One of the owners of lot 2, Mr Blair David Broadbent, gave evidence. He said that he and his wife moved into lot 2 in May 2013. He said that at that time he witnessed conflict between the owners of unit 1, a woman and her disabled daughter, and Ms Ras. He recalled that there was a lot of screaming going on at that time. The conflict appeared to be over gardens and the positioning of the disabled child’s horse apparatus stored at the front of the unit. He did not have any part of that dispute but knew that it was occurring and that it was bitter.

20. He said that he went to the 2013 AGM of the Corporation at Whittles. Ms Ras left an information sheet at the meeting setting out a list of her demands and saying that if permission was not granted for her demands then she would take the matter to court. She then left the meeting. He said that there were alarm bells ringing for him from that time on.[18] He was aware that a further document was then sent to the solicitors for Whittles setting out 18 points of her demands. She knew that two Corporation managers had sacked them. Her attitude was the same as her mother’s: that the Corporation managers would have to be educated.

    [18] The minutes of the meeting of the 2013 AGM of the Corporation are Exhibit D9.

21. Mr Broadbent said that the evidence given by Mr Weedon about the car going up and down the driveway continuously was most definitely true. He said that Marilyn Ras drove up and down the driveway at least 12 times per day. Mr Broadbent understood that the only reason for Ms Ras or Ms Marilyn Ras so regularly using the driveway was intimidation and harassment. He said that there was no other reason why she would even be in the driveway, especially when Marilyn Ras did not live there and the driveway of her home was 30 to 40 metres from the driveway to 3 Frist Street. He agreed that the properties were about 15 metres apart but the driveways were further apart. He agreed that Marilyn Ras treated the vehicles like ‘musical chairs’.[19] He said that cars were changed over and swapped all the time for no apparent reason. He said that he always found that whenever he came onto the property, Marilyn Ras would be soon on the property at least within about two minutes.

    [19] T100.33.

22. He agreed that the slatted screen fence that divided lots 2 and 3 had been there for at least four years and he knew that the space next to his garage on lot 3 was not for that period ever used as a car parking space. That was because it could not be so used. He became aware that Marilyn Ras was taking that dividing fence down. He has a clear recollection of that happening about 10 days ago because when she was doing it, he wanted to go into his shed and he was challenged by Marilyn Ras asking what was he doing and what he was doing there. When it was explained to her that he was going into his shed, she became very upset and agitated and rang her daughter. He could hear her saying to her daughter that working there was dangerous and that he, Mr Broadbent, was abusing her. He said that he had never abused her. Neither Marilyn Ras nor Ms Ras ever explained to him why the fence was taken down and he was never able to obtain an explanation as to why Marilyn Ras drove up and down the driveway so often. He said that he did not speak to her on the advice of the police.

23. In relation to the allegations by Ms Ras against him that he was abusive, he said that he has never been abusive towards her. He said that he had grouped together a bundle of letters which sets out everything they have tried to do in response to what Ms Ras said. On each occasion he had asked her to try to create harmony in the block of units. He had said to her that they wanted to seek some form of resolution. The bundle of documents is Exhibit D10. It shows a first letter to Mr Broadbent of 12 April 2015. It threatens him about the presence of tradies blocking the driveway, threatens to sue him in the District Court and says that the claim that she was going to make against him could result in his losing his unit and his business. It suggests that this was the final warning regarding obstructing the common driveway and would be used as evidence in Court. There was an earlier letter of 11 March 2015. It alleges breaches of the bylaws, addresses fencing issues and then says that if he is not satisfied with her offer then she would ‘bring up all of your breaches of the Court Order and set all of the issues at the same time … We will fight that in Court if this situation arises.’ In another letter of 8 April 2015 she again threatens Mr Broadbent about parking on the common areas and ends the letter by saying that: ‘… if the conduct continues we will have to take legal action and request costs be claimed from you…’ The letter is signed by Marilyn Ras. She is not the owner of any legal or beneficial interest in this unit. There was a response by Mr Broadbent of 21 September 2015. It says that Court requirements have been fulfilled, there are no vehicles parking that obstruct and ends as follows:

    We have never had any issue to go to Court about any matter, we feel that all matters can be civilly discussed in a reasonable manner, we seek to achieve an environment of ongoing harmony on the block.

1. In a further letter of 29 September 2015 Mr Broadbent refers to the fact that he is trying to arrange a meeting of unit holders. He tells her that as a unit holder he wants her to have a contribution to determine which direction the Corporation goes in light of the fact that it no longer has a manager. By letter of 23 October 2015, Ms Ras responds in relation to a fencing cost and says pay up or the matter will go to Court. Then in a letter of 22 October 2015 she refers to a cement truck coming onto the premises, that access should be maintained and that if access was not maintained it would become a police/court matter. The letter ends by Ms Ras saying that ‘should the cement truck come in before the regulated time on Saturday morning you will be reported to the relevant authorities.’ On 8 November 2015 Mr Broadbent wrote the following letter to Ms Ras, which speaks for itself:

   Hi Nicole,

   As the Magistrate has advised us to meet to discuss any issues that are concerning to you, could you please nominate a time an day when we could meet, preferably after 5 pm, to discuss these issues, hopefully before the AGM to enable us to move forward in an harmonious way.

2. Mr Broadbent explained the use of his shed. He said that he is now almost retired. He previously had vending machines. He still has three. He supplies those vending machines from stores kept in his shed. He works about four to six hours per week on those machines.

3. He gave evidence of the very loud music continuously played from Ms Ras’ premises. This occurs on a number of occasions and particularly when she is not at home. Marilyn Ras would come to Ms Ras’ home, place the music on with a techno beat and leave the premises with the music on. He said that has happened between 20 and 30 times. He described how difficult it is with other vehicles being parked in the driveway. He says he is not able to manoeuver his car out of his parking position in front of his unit. He says essentially what they have done now is waited until Ms Ras or Marilyn Ras move their vehicle parked in the driveway.[20] He has had occasion when tradesmen have been in his premises and their vehicles have been blocked in by the Ras’ vehicles. One was a snake catcher who was obviously a snake catcher by the hoardings on the vehicle. Other tradesmen had been abused by Marilyn Ras for being anywhere near the premises.

   [20] T107.32-108.14.

4. Mr Broadbent took distinct umbrage at any suggestion that he was a ‘peeping Tom’. He was particularly upset by these assertions, none of which, he said, had any basis in fact. Ms Ras cross-examined Mr Broadbent. He said that he had mentioned these difficulties to Ms Ras. She put to him that these matters had never been mentioned to her. He denied that emphatically and said that he has mentioned those matters to her and her mother and suggested that Marilyn Ras park her car on the street rather than block off the entrance to his premises, and Marilyn Ras just laughed at him.[21] He also confirmed that Ms Ras and Marilyn Ras would park their vehicles half-way down the driveway and take goods from the car to the house. This was rather than parking the vehicles near the house. The only reason they would park half-way down the driveway was to affect the use of the driveway for other tenants. This was to harass and menace.[22]

   [21] T114.27-115.4.

   [22] T116.6-.10.

5. He said in any event that the three point turn really could not be done in the way that Ms Ras described it. He said there was not enough room in the driveway for there to be a three point turn into the area around his garage and then to back in through the driveway. He knows that she has done it occasionally and has damaged her car on the uprights of the fence line and the gates.

6. Mr Broadbent also gave evidence in cross-examination about the number of cameras that were in the premises. The Court received Exhibit D11. The photograph A on p 1 shows a camera placed upon an outdoor table in Ms Ras’ front yard. It is photographing the work done by tradesmen. Photograph B on p 1 is a camera stuck between the slatted screen fence and the wall of the garage. The photograph on p 2 is the camera attached to the back fence and the photograph at p 3 is the camera attached to the front fence post.

7. No evidence was given by Ms Ras for the reason to have a camera on an external table photographing the work of tradesmen. He also saw Ms Ras change the positioning of the camera on the front picket fence upright.[23] She was changing position depending upon what she was doing at a particular time.

   [23] T127.23.

8. I completely accept the evidence of Mr Broadbent. He was a truthful, credible, accurate and reliable witness. I do not accept any of the evidence of Ms Ras where it is in conflict with any of the evidence of Mr Weedon, Mr Broadbent or Mr Russell. I had the distinct impression that Ms Ras was ambivalent to the possibility that she may mislead the Court in her evidence.

9. Mr Weedon asked me to make an order for an injunction restraining Marilyn Ras from coming on the property. He complained that she comes onto the property, looks into people’s windows, travels up and down the driveway in a car dozens of times a day, threatens to sue people, trespasses generally, loiters generally, invades people’s privacy and generally makes a nuisance of herself. He sought an order for a 12 month ban of Ms Marilyn Ras from the property. He also asked for an order that Ms Ras not bring her car onto the driveway and that the gates be removed.

10. He also claimed for payment for the costs and expenses incurred by the Corporation as a result of the activities of Ms Ras. He estimates those as $1946, inclusive of money paid or payable to Mr Russell in his capacity as Administrator.

11. When Ms Ras made her submissions, I put a number of propositions to her.[24] I then gave Ms Ras a number of opportunities to explain to me why it was that she did not mention in her evidence the removal of the fence only 10 days prior to the hearing of this review in circumstances where her evidence was that the space adjacent to the garage wall of lot 2 was used as a car park and that she had produced photographs showing her mother’s car as parked in that driveway. I also put to her that the clear inference arising from the evidence that she gave and the documents that she produced was that that area was used and had always been used as a car park. When questioned about why she did not tell me in evidence that she had only taken down the fence 10 days ago, leading to the conclusion that she was trying to improve her position, her only answer was that it was in her notes somewhere for her presentation and that it had everything to do with the new bylaw 6(d). I have previously set out that bylaw. I am of the view that the bylaw does not and could not reasonably ever be read to require the removal of the fence.

    [24] T141.29.

12. I find that the intention of Ms Ras was to create the clear impression in my mind that the fence was brought down for the so-called safety reason allegedly required by bylaw 6(d) and that for all intents and purposes, the area next to the garage wall was used as a car park and access was taken across the common area (sought to be transferred to the owners of lot 2) to the front door of Ms Ras’ premises. That is not a correct or accurate presentation of the facts.

13. At the time of the hearing before Magistrate Gumpl, the fence was in position. It was only after Magistrate Gumpl made the orders based upon the recommendations of Mr Russell (Exhibit D3) and this review application was commenced that that fence was removed. It was only then that there was a suggestion that a second vehicle could be parked and that foot access had to be taken across the so-called common area sought to be transferred to the owners of lot 2. It was only because I continued to ask questions about the peculiarity of the removal of the slatted screen fence and the continued existence of the fencepost, the picket fence descending to the gate and the existence of the gates which look so peculiar that the true position was revealed. I accept the evidence of Mr Broadbent, Mr Weedon and Mr Russell that that area next to the garage had never been used as a car park in their experience. I find that the evidence in relation to that car park was calculated as a convenient explanation. I also find that this explanation is inconsistent with existing facts, is untenable and cannot be accepted.

14. In relation to the evidence, I accept as credible, reliable and truthful the evidence of Mr Weedon and Mr Broadbent. Both of those witnesses gave their evidence in a frank and forthright manner. They did not embellish their evidence nor were thy prone to exaggeration. I completely accept their evidence as truthful and reliable.

15. I consider that the evidence of Ms Ras, particularly where it was inconsistent with the evidence of Mr Weedon and Mr Broadbent, cannot be accepted. I am not prepared to accept Ms Ras as a witness of truth or accuracy. It is not necessary for me to make any decision that Ms Ras deliberately set out to mislead me. It is sufficient that I find that her evidence was so lacking in credibility and cogency that no aspect of it could be accepted.

16. I accept the evidence of Mr Weedon and Mr Broadbent that Ms Ras and her mother, Marilyn Ras, deliberately, knowingly and with intention acted so as to interfere with the peaceful use and enjoyment by Mr Weedon and Mr Broadbent and his wife of the common area of the Corporation property that such conduct constituted a real and direct nuisance. I accept the evidence that Ms Marilyn Ras traverses that driveway at least 12 times a day, notwithstanding that on each occasion she lived only some 30 to 40 metres away from that very driveway. I accept the evidence of Mr Weedon and Mr Broadbent that Marilyn Ras and Ms Ras deliberately and continuously played loud techno music from lot 3 in circumstances as described by Mr Broadbent and Mr Weedon when, on occasions, there was no one at home at lot 3 as well as on other occasions. I accept the evidence of Mr Broadbent that Ms Marilyn Ras and Ms Ras have been unnecessarily and deliberately abusive to any trades person, delivery van or other such vehicle which comes onto the premises for a usual commercial purpose. I accept that Marilyn Ras has loitered on the common area of the property, has deliberately goaded the owners of Lots 1 and 2, has made it known that if there is any complaint that she and her daughter will sue the other lot owners in relation to their conduct and that both Ms Ras and her mother have created an atmosphere of distrust, threat and completely unacceptable conduct through their behaviour. In the exercise of my discretion I consider that this Court has jurisdiction to make interventionist orders against both Ms Ras and her mother, Marilyn Ras, if she was joined as a party to the proceeding. This is plainly contemplated under s 142(7) and (8) of the Community Titles Act. 

17. I also accept the evidence of Mr Broadbent that it is not feasible for Ms Marilyn Ras to drive into the area adjacent to the garage door of lot 2 and then do a three-point-turn. I accept his evidence that in order for any vehicle to reverse through the entrance created by the gates, it is necessary for a three-point-turn to be made much earlier than described and in an area owned by Mr and Mrs Broadbent. On the evidence, I reject any assertion to the contrary by Ms Ras. I accept Mr Broadbent’s evidence that on occasion when Ms Ras has attempted such a three-point-turn on such a narrow basis (adjacent to the slatted screen fence) that she has damaged her vehicle because of her inability to judge distances and angles. I can see no reason why Ms Ras could not reverse her vehicle whilst, in the usual way, using her reversing mirrors that are on her vehicle (see Exhibit D6 photograph B1), Also, I can see no reason why Ms Ras would not be able to reverse her vehicle in the usual way notwithstanding any neck condition that she might suffer. She gave no evidence of her inability to control a motor vehicle using reversing mirrors.

18. I turn then to the question of the Community Titles Act.

    The Community Titles Act

19. The Community Titles Act, according to its short form description, is an act to provide for the division of land into lots and common property; to provide for the administration of the land by the owners of the lots; and for other purposes. There are 15 Parts to the Act, plus transitional provisions. I will only refer to those parts of the Act that are relevant to this discussion.

20. Under s 6, the Act provides for the division of land into lots and common property and a lot so created by division is a community lot or development lot. Under s 10, a community corporation is established when a plan of community division is deposited with the Registrar General at the Land Titles Office (LTO). Under s 11 it is necessary for there to be a scheme description for the division, development and administration of the community parcel and, under s 12, bylaws may be used to regulate the use and enjoyment of the common property, the purpose for which community lots may be used and the design, construction and appearance of buildings on the common property and the community lots and the landscaping of community lots.

21. Land for a community title is to be divided according to the plan of community division under Part 3 of the Act. Division 2 of Part 3 prescribes lot entitlements according to the community plan deposited under Division 3. Under s 23, when a community division plan is deposited, the common property vests in the owners of the community lots but the certificate of title for the common property will be issued in the name of the community corporation.

22. Division 4 of Part 3 addresses the common property. Under s 28, the common property created by a community plan comprises those parts of the community parcel that do not comprise or form part of a lot, any service infrastructure, any building that is not for the exclusive use of a lot and any building erected by a developer or the community corporation as part of the common property. Under the same section, common property may be used for any lawful purpose including a commercial purpose. Under s 29, the common property is vested in fee simple as tenants in common in the owners for the time being of the community lots and shares proportionate to the lot entitlements of their respective lots. Under s 29(4) of the Act, an owner’s interest in a lot is inseparable from his interest in the common property and so a dealing affecting the lot will automatically affect the interest in the common property in the same manner and to the same extent of that lot owner. That lot owner cannot separately deal with or dispose of the interest in the common property. Also, under s 29(5), if the community corporation is authorised by or under the Act to enter into a transaction affecting the common property, it may enter into the transaction and execute documents related to the transaction in its own name as if it were the owner of an estate in fee simple in the common property.

23. Part 4 sets out the provisions about the scheme description. Under s 31(b) the scheme description must identify the community parcel and the lots and the common property into which the parcel is to be divided, usually by a deposited plan. It must also describe the purpose or purposes for which the lots and the common property may be used. Under s 31 of the Act, the scheme description may be amended by unanimous resolution of the community corporation but only if consistency is maintained with the plan of community division, the bylaws and the development contract or contracts of the community scheme. And, under s 31(4), the corporation is required to provide evidence to the satisfaction of the Registrar General that the amendment made was made by unanimous resolution of the corporation. Those persons are prescribed under s 32 of the Act and include the owners of the community lots.

24. Part 5 of the Act covers bylaws. Under s 34(2) the bylaws of the community scheme (which must be deposited with the Registrar General from the outset) must provide for the administration, management and control of the common property. For example, under s 36(1) of the Act, a bylaw may confer on the occupier for the time being of a community lot (or the occupiers of a group of lots) the exclusive right to use a specified part of the common property for the purpose or purposes stated in the bylaws. Under s 39(1) of the Act, a bylaw may, subject to s 87(2) of the Act, be varied by special resolution of the community corporation. Under s 41, bylaws which are inconsistent with the Act, the scheme description, any development contract or the scheme in general, are, to the extent of that inconsistency, invalid.

25. Part 7 in Division 1 of the Act provides for the amendment, amalgamation and cancellation of a deposited community plan. Under s 52 of the Act, an application for the amendment of a deposited community plan may be made by a community corporation and, under s 52(1)(a), such an application may only be made by the owners of all community lots that will be affected by the amendment if the amendment does not affect any common property and does not affect the aggregate of the lot entitlements of the community lots affected by the amendment. Under s 52(2), the applicant or applicants must provide evidence to the satisfaction of the Registrar General that, in the case of an application made by a community corporation, the application is made in pursuance of a unanimous resolution of the corporation. Pursuant to s 53(2) of the Act, the application may not be withdrawn or amended without the consent of all persons who have consented to the application.

26. Part 9 of the Act deals with community corporations. The establishment, corporate nature, common seal and membership rights and obligations are dealt with under ss 71, 72, 73 and 74 of the Act. Under s 75 of the Act, the functions of the corporation are prescribed to be those of administrating, managing and controlling the common property for the benefit of the owners of the community lots and to maintain the common property. Under s 75(3), a corporation’s decision to make any improvements to the common property must be made by special resolution.

27. Part 9 of Division 4 contemplates the appointment of an administrator to a corporation’s affairs. Section 100 of the Act reads as follows:

    100—Administrator of community corporation's affairs

    (1)     The District Court or the Magistrates Court may, on application by—

    (a)     a community corporation; or

    (b)     a creditor of a community corporation; or

    (c)     the owner of a community lot or a development lot; or

    (d)     a person who holds a registered encumbrance over a community lot or a development lot,

    appoint an administrator of the community corporation, or remove or replace an administrator previously appointed.

    (2)     An administrator has, while the appointment remains in force, full and exclusive power to administer the affairs of the community corporation (including power to do anything for which a special or unanimous resolution of the corporation is required).

    (3)     The administrator must comply with any directions that the court may give from time to time.

    (4)     The remuneration of an administrator will be fixed by the court and is payable from the corporation's funds.

    (5)     The administrator may, by written instrument, delegate any of his or her powers.

    (6)     A delegation under subsection (5)—

    (a)     may be made on such conditions as the administrator thinks fit; and

    (b)     is revocable at will; and

    (c)     does not derogate from the power of the administrator to act in any matter personally.

    (7)     A person to whom powers have been delegated under subsection (5) who has a direct or indirect pecuniary interest in any matter in relation to which he or she proposes to exercise delegated powers must disclose the nature of the interest in writing to the administrator.

    Maximum penalty: $15 000.

    (8)     It is a defence to a charge of an offence against subsection (7) to prove that the defendant was not, at the time of the alleged offence, aware of his or her interest in the matter.

    (9)     A person who—

    (a)     is appointed as an administrator; or

    (b)     is removed or replaced as an administrator,

    must, within 14 days, give the Registrar-General written notice of his or her appointment, removal or replacement together with such supporting evidence as the Registrar-General requires.

    (10)    The Registrar-General must file the notice with the plan of community division.

1. Under s 100(1), (2) and (3), this Court may, on application by the corporation or the owner of a lot, appoint an administrator of the community corporation or remove or replace an administrator previously appointed. It is to be assumed that this was the power exercised by Magistrate Gumpl when he appointed Mr Russell as administrator of the Community Corporation’s affairs. I consider that there can be no criticism of the decision made by the learned Magistrate to appoint an administrator. Under s 100(2), an administrator has full and exclusive power to administer the affairs of the corporation (including the power to do anything for which a special or unanimous resolution of the corporation is required). This is an extraordinary power. It must be exercised in good faith and it must take into account all necessary relevant matters and not take into account any matters that are irrelevant in the usual fashion of what is commonly described as Wednesbury unreasonableness.[25] Under s 100(3), the administrator must comply with any directions that the court may give from time to time.

   [25] Associated Provincial Picture Houses Ltd v Wednesbury Corp (Wednesbury Case) [1948] 1 KB 233; [1947] 2 All ER 680; see also Minister for Immigration and Citizenship v Li (2013) 249 CLR 132; Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd (2014) 313 ALR 469; Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118.

2. Property management is dealt with under Part 10. There is a power to enforce duties of maintenance, repair, to insure and to ensure the continual fulfilment of the enforcement obligations. Section 111 of the Act is to be found within Division 4 of Part 10. Under it, the corporation may grant a right to occupy the whole or a part of the community property to the exclusion of all or some of the owners or occupiers of the community lots. That right to occupy cannot be granted contrary to the bylaws.

3. Under Part 12 of the Act, there are set out the obligations of owners and occupiers. Of particular importance is s 133. It reads as follows:

   133 – Nuisance

   An owner or occupier of a lot must not use or permit the use of the lot or the common property in a way that –

   (a)     causes a nuisance; or

   (b)     interferes unreasonably with the use or enjoyment of another lot or the common property by another person who is lawfully on the lot or common property.

4. Different from s 142 that I have discussed above, this section has application to the owner or occupier of a lot. Differently, s 142 allows the Court to make orders in respect of a party. However, I think that there is a substantive connection between the two sections. This is because s 133 prohibits an owner or occupier permitting the use of the common property on the lot in the prohibited way. This will relate to the conduct of persons such as Ms Marilyn Ras, she being permitted to have access to lot 3 across the common property, such permission having been given by Ms Ras.

5. Part 14 of the Act deals with the resolution of disputes. Section 142 of the Act reads as follows:

   142—Resolution of disputes etc

   (1)     An application may be made under this section—

   (a)     if the applicant claims that a breach of this Act or of the by-laws of the community scheme has occurred; or

   (b)     if the applicant claims to have been prejudiced, as occupier of a lot, by the wrongful act or default of the community corporation or of a delegate or the management committee of the corporation or of the developer or the owner or occupier of another lot; or

   (c)     if a member of a community corporation claims that a decision of the corporation or a delegate or the management committee of the corporation is unreasonable, oppressive or unjust; or

   (d)     if a dispute arises—

   (i) between a community corporation and a member of the corporation; or

   (ii) between two or more members of a corporation,

   in relation to—

   (iii) any aspect of the occupation or use of a lot; or

   (iv) the position in which a cable, wire, pipe, sewer, drain, duct, plant or equipment should be laid or installed; or

   (e)     for an order authorising a person to use force to enter a lot or a building on a lot.

   (2)     Subject to this section, an application must be made to the Magistrates Court.

   (3)     A person may, with the permission of the District Court, bring an application under this section in the District Court.

   (4)     The District Court may, on the application of a party to proceedings under this section that have been commenced in the Magistrates Court, order that the proceedings be transferred to the District Court (and such an order will have effect according to its terms).

   (5)     Proceedings should not be commenced in, or transferred to, the District Court under subsection (3) or (4) unless the District Court considers that it is appropriate for the court to deal with the matter by reason of the complexity or significance of the matter.

   (6) A court may, on its own initiative or on an application by a party to the proceedings—

   (a)     transfer an application under this section to the Supreme Court on the ground that the application raises a matter of general importance; or

   (b)     state a question of law for the opinion of the Supreme Court.

   (7)     A court, in hearing and determining an application under this section, should act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.

   (8)     A court may, in respect of an application under this section—

   (a)     attempt to achieve settlement of the proceedings by agreement between the parties; or

   (b)     require a party to provide reports or other information for the purposes of the proceedings; or

   (ba)    order a party to have any accounts audited or to reimburse any person for the costs of having any accounts audited; or

   (c)     order that a party take such action as is, in the opinion of the court, necessary to remedy any default, or to resolve any dispute, and is specified in the order; or

   (d)     order that a party refrain from any further action of a kind specified in the order; or

   (da)    make a declaration as to the validity of—

   (i)      any by-law or purported by-law of the corporation; or

   (ii)      any decision or purported decision of the corporation; or

   (e)     by order—

   (i)      alter the by-laws of the community scheme (and make any necessary consequential changes to the scheme description and development contracts); or

   (ii)      vary or reverse any decision of the corporation, or of the management committee of the corporation or of a delegate of the corporation; or

   (ea)    vary, avoid or terminate a contract entered into (whether before or after the commencement of this paragraph) between a community corporation and any of the following:

   (i)    the developer;

   (ii)      an associate of the developer;

   (iii)     the body corporate manager;

   (iv)     an associate of the body corporate manager; or

   (f)    give judgment on any monetary claim; or

   (g)     by order determine the position in which a cable, wire, pipe, sewer, drain, duct, plant or equipment is to be laid or installed; or

   (h)     make orders as to costs; or

   (i)      make any incidental or ancillary orders.

   (9)     A court should not make an order to alter the by-laws of a community scheme unless—

   (a)    the corporation is a party to the proceedings or the court is satisfied that the corporation has been given a reasonable opportunity to become a party to the proceedings; and

   (b)     if it appears to the court that the alteration could adversely affect a member of the corporation who is not a party to the proceedings—the court is satisfied that the member has been notified of the possibility that such an order could be made and has been given a reasonable opportunity to make submissions to the court in relation to the matter; and

   (c)     in any event—the court is satisfied that the order is essential to achieving a fair and equitable resolution of the matters in dispute.

   (9a)    A court should not make an order to vary, avoid or terminate a contract entered into between a community corporation and another party unless the court is satisfied that the contract involves a breach of fiduciary duties or other duties under this Act.

   (10)    Where an application is made under this section and the court is satisfied that an interim order is justified by the urgency of the case, the court may make an interim order to safeguard the position of any person pending its final resolution.

   (11)    An interim order—

   (a)     has effect for such period as the court may determine and specifies in the order, and may be renewed by the court from time to time; and

   (b)     may be made or renewed whether or not notice of the application has been given to a respondent; and

   (c)     unless sooner revoked, ceases to have effect on the determination or resolution of an application under this section.

   (12)    The power to make an order under this section includes the power to vary or revoke an order.

   (13)    A person who fails to comply with an order under this section is guilty of an offence.

   Maximum penalty: $15 000.

   (14)    Subsection (13) does not limit the court's power to punish a person who fails to comply with an order for contempt.

   (15)    A court may decline to proceed with an application under this section if it considers that it would be more appropriate for proceedings to be taken in another court or tribunal constituted by law.

   (16)    Rules of court may be made dealing with any matter necessary or expedient for the effective and efficient operation of this section.

   (17)    The rules for a particular court will be made in the same manner as ordinary rules are made for that court.

   (18)    This section does not limit or derogate from any civil remedy at law or in equity.

6. Under this section, an application may be made to the Magistrates Court or the District Court where a dispute arises between two or more members of the corporation in relation to any aspect of the occupation or use of a lot. Any court in hearing and determining an application may, under s 142(7) act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit. Under s 142(8), the court may order that a party take such action as is, in the opinion of the court, necessary to remedy any default, or to resolve any dispute, as specified in the order; or under sub-s (d) order that a party refrain from further action of a kind specified in the order. The court may vary or reverse any decision of the corporation, or of the management committee of the corporation or of a delegate of the corporation. The court may make incidental or ancillary orders and may make interim orders that the court considers justified by the urgency of the case. These interim orders must be required to safeguard the position of any person pending its final resolution. That interim order has effect for such period as the court may determine and specifies in the order and may be renewed by the court from time to time.

7. Finally, on the question of relief to be granted to a party, a lot owner or a corporation, s 149(1) reads as follows:

   149 – Relief where unanimous or special resolution required

   (1) Where

   (a) this act or the bylaws require the passing of a unanimous resolution and the community corporation passes a special or ordinary resolution but not a unanimous resolution; or

   (b) this act or the bylaws require the passing of a special resolution and the corporation passes an ordinary resolution but not a special resolution, the corporation or a member of the corporation who voted for the resolution or whose vote was cast by another person for the resolution may apply to the District Court or the Magistrates Court to have the resolution declared sufficient for the purposes of this Act and, if the court makes that order, the resolution will be taken to be a resolution of the kind required by this Act or the bylaws.

8. The recommendations of Mr Russell were accepted by Magistrate Gumpl and those recommendations have now been implemented. One of them, for the sale of a portion of the common area, has been implemented. A contract that is specifically enforceable has been created between the Administrator and the Broadbents for the sale of an interest in the common area. This act by the Administrator was within his power (s 100(2) of the Act). The Administrator was clothed with these powers under the orders of Magistrate Gumpl.

9. Paragraph 7 is a recommendation that all parties agree to no new litigation by any parties for the next 12 months. No basis is made out for such a recommendation or, consequentially the order of the Court. I consider that there is no basis in law for the making of such an order. It must be set aside. Order 1 requires that all video cameras installed in or about lot 3 are to be removed. Absent the requirements of the Surveillance Devices Act 2016 (SA), I consider that there could be no objection to a safety camera being installed at or about the garage point of lot 3. Ms Ras is a single woman living alone. My understanding from the evidence is that there has been at some time, a camera positioned on the wall adjacent to the roller door on the garage of lot 3. I consider this to be appropriate but in the context where there was a 2.1m high fence running between the outside wall of the garage on lot 2 through to the fencepost adjacent to the gates. I thought that Ms Ras reasonably would want to have a view of persons coming down her driveway in the reasonable expectation that they would not try to scale the fence. The gates across her driveway are very low. However, the position is now completely different. Due to the activity of Ms Ras, the 2.1m high fence has been removed. That security has gone. The other lot owners seek an order that a further 2.1m high security fence be constructed along the boundary of the two lots. That is a matter to which I will give consideration later. However, in the present context, I am considering the question of recommendation number 1 which became the order of Magistrate Gumpl. In light of the removal of the 2.1m high fence, any video camera operating from the front of Ms Ras’ home, will photograph the whole of the common area in front of lot 2, the driveway and the common area in front of lot 1. I consider that to be an inappropriate invasion of the privacy of the owners of lots 1 and 2. I also consider it is inconsistent with the purpose of the Surveillance Devices Act. My view would have been different if the 2.1m high fence had remained in situ for the reasons already explained. That is not the case. It follows that although my first reaction to recommendation 1 of Mr Russell was that it was not appropriate in light of the position of Ms Ras, I consider that in the way that the matter has developed, that is an appropriate order. It also follows that recommendation 2 and therefore order 2 are appropriate and may stand.

10. Recommendation 3 was not a matter challenged by any of the lot owners. So also recommendation 4, 5 or 6. I then turn to recommendation 8:

    That the Community Corporation sell the common land (18sqm) in front of lot 2 garage subject to an independent valuation and the owners bearing all associated costs including but not limited to the survey, conveyancing and lodgement costs. (see annotated aerial photograph in this report)

11. I have earlier discussed the scheme and content of the Community Titles Act. At the time of the creation of the community titles scheme for this address, it was necessary to lodge with the Registrar General a deposited plan and bylaws. That deposited plan described the proprietary rights of the various lot owners and also the common area. Under s 23 of the Act, that common area vested in the owners of the community lot but the certificate of title was to be issued in the name of the community corporation. The common property is, under s 29, vested in fee simple as tenants in common in the owners of the community lots in shares proportionate to the lot entitlements of those respective lots. The owners’ interest in the lot is inseparable from the interest in the common property.

12. In order for the corporation to enter into a transaction in respect of the common property, it must be authorised under its bylaws. It may deal with the common property, in that context, as if it was the owner notwithstanding the interest in fee simple as tenants in common of the owners of the lot entitlements.

13. I consider that the description of the lot entitlements and the common area are part of the scheme description for the Act. I also consider that if a portion of that scheme description was to be amended, it would be necessary to comply with the obligations under Part 4 of the Act and to lodge an amended plan. It would be necessary for consistency to be maintained with the plan of community division of the community scheme. It would then be necessary under s 31(2) for the community corporation to lodge a copy of the scheme description as amended with the Registrar General and follow the prescriptions set out in ss 31, 32 and 33 of the Act.

14. There is no evidence before me that there is any bylaw providing for exclusive use in any particular lot owner of the common property. It follows that the corporation would be required to comply with Part 7 of the Act to amend the community plan.

15. I accept that Mr Russell as Administrator had the powers as prescribed under s 100 of the Act. Under s 100(2) as Administrator he had exclusive power to administer the affairs of the Community Corporation including power to do anything for which a special or unanimous resolution of the corporation is required. As I have described above, in order to alienate any part of the common property, it would be necessary for there to be a unanimous resolution and for there to be an amended plan deposited.

16. The Administrator may permanently alienate to a unit holder a portion of the common property in the exercise of the powers under s 100(2) of the Act. This is the case even where, as here, there are three lot owners. Lot 1 agrees with the proposition and the owner of lot 3 disagrees. There could only be an ordinary resolution passed. The actions of the Administrator are directed to the breaking of a deadlock (the absence of a unanimous resolution) where there are genuine interests on either side which support the decision making process of each party. A question for the Administrator is why, in those circumstances, could an administrator favour one solution over another when so much would than need to be done to, for example, amend the plan. On the evidence I am satisfied that Mr Russell has considered every possibility having regard to the history of the matter. Also, it may be said that the decision made by the administrator (absent the unanimous resolution) is consistent with administering the affairs of the community corporation. The full and exclusive power in the administrator is to administer the affairs of the community corporation. Such power extends to making a decision on this issue which would otherwise require a unanimous resolution of lot owners. There is nothing to support a submission or assertion that it is necessary to involve the Court before the exercise of such power. I consider that the balance of the relevant provisions within the Act lend real support to that view. 

17. An administrator of a corporation is required to administer the affairs of the corporation. Within such a concept is a right within an administrator to unilaterally make a decision to transfer a portion of the common property to a particular lot owner in the circumstances of a deadlock between the lot owners. The exercise of such a power is consistent with administering the affairs of the corporation. Support for that view is to be taken from the provisions of the Act which, under Part 7, require an application for the amendment of the deposited community plan to be made by the corporation and that may only be made by the owners of the community lots that will be affected by the amendment if that amendment does not affect any common property (s 52(1)(a)).

1. I think there are also a number of reasons contained within the balance of the Act which justify that view. The Act contemplates dealing with the common property in a limited number of ways. The first, under Division 4 of Part 10 allows there to be a leasing of the common property. Section 111(1) provides that a right to occupy the whole or part of a common property may be granted by the corporation but pursuant to a unanimous resolution of the corporation which must not be granted contrary to the scheme description. It also must not be granted contrary to the bylaws. Therefore, consistent with the rights of lot owners, the right to occupy may be granted pursuant to a unanimous resolution and in accordance with the requirements of the bylaws. The Administrator has such a power under s 100(2) of the Act.

2. The Act itself then contemplates an inability to obtain a unanimous resolution. Under s 149, where a special or ordinary resolution but not a unanimous resolution has been passed when the Act requires the passing of a unanimous resolution, the party who voted in favour of the resolution may apply to the court to have the resolution declared sufficient for the purposes of the Act and if the court makes the order the resolution will be taken to be a resolution of the kind required. It would follow that the deposited plan may be amended in accordance with that resolution and the resolution is itself carried into effect. This may include a permanent alienation of a portion of the common property through that process or alternatively a lease of the common property pursuant to that process. This is consistent with the view I have earlier expressed that the power contemplated under s 100(2) for the administrator of the corporation contemplates substituting the administrator’s views for those of a unanimous resolution.

3. The court has very broad powers to resolve disputes. I have earlier set out and discussed s 142 of the Act and its operation. The powers within that section are intentionally broad and sufficient to enable the fashioning of orders for the resolution of disputes.

4. I consider that the Court was not then in a position to make order number 8 as described in paragraph [5] hereof concerning the sale of portion of the common area in front of the lot 2 garage. I consider that in making such an order, the Magistrate appears to have overlooked the operation of Part 14 of the Act. I also consider that the Court did not then have authority under the Act or at common law in general, to make order number 8 concerning sale of the portion of the common area. In order to make such an order it would be necessary to give consideration to the enlivening of the general powers under the Act that I have set out above. This did not occur in this case. Although the Court has broad general powers it is always necessary to ensure that all interested parties have a clear understanding of the issues for determination. It is then necessary to identify the power under which the order has been made. This did not occur at the time that the learned Magistrate made his orders. Be that as it may, the question then becomes whether there was power in the Administrator to convey a portion of the common area. If such power exists, the relevant question becomes whether there can be any challenge to the exercise of that power by the Administrator.

5. The Administrator had the power under s 100(2) of the Act to resolve to sell a portion of the common area. Once the Administrator is appointed, he has available to him the suite of powers under s 100 of the Act which enable him to make an enforceable contract for the sale of that portion of the common area. That is what the Administrator has done in this case. The evidence of Mr Russell led before me indicates that his recommendation reflected his decision-making process about the resolution of this issue. As I have earlier identified, that decision was made in good faith and in the absence of any evidence of unreasonableness. There is no identifiable basis for this Court to interfere with the exercise of the discretion of the Administrator. No relevant unreasonableness is apparent on the evidence. To the contrary, the position reached was intractable and this solution is both practical and reasonable and the only sensible solution.

6. I have formed this view even though order number 8 made by the Magistrate directs the Corporation to sell a portion of the common area. I have found that the Court had no power to make this order. However, this does not detract from the fact that once appointed the Administrator had the power to sell a portion of the common area and has done so. The evidence satisfies me that this conveyance would have occurred irrespective of the orders of the Court. To that extent, order number 8 of the learned Magistrate is otiose. 

7. It follows that even though I disagree with the approach of the learned Magistrate, I am not able to identify any basis to interfere with the decision of the Administrator nor do I consider that the decision-making process of the Administrator was overborne by the order made by the Court. This is because I am satisfied that if the order of the learned Magistrate was set aside, that the Administrator would resolve in the same way to act under the powers given to him under s 100(2) of the Act and would reinvigorate the contract with the owners of lot 2.

8. There was no challenge to paragraph 9, 10, 11, 12 and 13 of the recommendations. I do not need to consider them.

9. Earlier in these reasons I described the evidence of Mr Weedon and Mr Broadbent, which I accept without hesitation, about the conduct of Ms Ras and Marilyn Ras. I accept that the conduct of both women would have caused extraordinary distress to the owners of lots 1 and 2, would have unreasonably interfered with their use and enjoyment of their property and with the use and enjoyment of the common property of the Corporation. I was of the view that under the powers given to the Court under the Act some steps needed to be taken to restrain that behaviour. It became unnecessary for me to make any orders because undertakings were voluntarily given to the Court by Marilyn Ras and Nicolette Ras in the following terms:

   1.I, Marilyn Ras will not in any form of vehicle apart from Toyota Echo, registration number XKL 909 and accompanied in that vehicle by my daughter, Nicolette Ras traverse over in any way the common property at 3 First Street, Hallett Cove.

   2.I, Marilyn Ras will not traverse over the common property of 3 First Street, Hallett Cove by foot.

   3.I, Nicolette Ras will not traverse over the common property of 3 First Street, Hallett Cove in the motor vehicle being the Toyota Corolla S975 AUA.

   4.I, Nicolette Ras, insofar as I do traverse the common area of 3 First Street, Hallett Cove in the Toyota Echo motor vehicle, I will do so without making any three point turns within the common area.

10. A number of things may be noted. The first is that Marilyn Ras is not a party to these proceedings. She has given an undertaking to the Court whilst not such a party. I consider that in the exercise of my discretion, under the powers under s 38 of the Magistrates Court Act and under s 142 of the Act, it is appropriate that I make an order for the joinder of Marilyn Ras to the proceedings as a second applicant. I so order.

11. The second is that the undertakings given by Marilyn Ras and Nicolette Ras mean that the only way in which Marilyn Ras would enter the property at 3 First Street Hallett Cove will be whilst accompanied by her daughter in her vehicle and that her own vehicle will no longer be permitted to traverse over the common property of 3 First Street Hallett Cove. I accepted these undertakings because I considered that these undertakings, if observed, will remove a substantial amount of the difficulties currently being encountered by the parties.

12. Following the first hearing in this matter, a second application was issued by Ms Ras seeking the following orders:

    1.     That another Hearing is held in order for Marilyn Ras and Nicolette Ras to disprove various unfounded allegations made by Mr Weedon and Mr Broadbent with regards to a) Marilyn Ras’s behaviour and traversing the common driveway. These unfounded allegations resulted in Marilyn Ras not being able to freely traverse the common driveway at 3 Frist Street, Hallett Cove. b.) Unfounded allegations were also made regarding reasons for the sale of the common land. I have CCTV and other evidence to disprove these allegations.

    2.     To add Marilyn Ras as a party to the proceedings.

    3.     Ratification of the 2017 AGM Minutes of Corporation 27140.

    4.     An Order from the Court that Mr Weedon and Mr Broadbent pay the following costs: Application fee of $160 to N.Ras, Court Appointed Administrator(Mr Russell’s) Court attendance fees as well as Mr Russell’s costs that have been incurred by the Corporation. Costs of suffering to Marilyn Ras, namely $250 from Mr Weedon and $250 from Mr Broadbent.

13. The application was supported by an affidavit of Ms Ras dated 14 May 2018. There was a further hearing before the Court on 17 May 2018 at which all parties were present.

14. Before considering the substantial matters that arose at that hearing, some mention needs to be made of the last affidavit of Ms Ras. It was directed to the use by both Ms Ras and Ms Marilyn Ras of the driveway of the premises in their vehicles. The affidavit was argumentative, irrelevant or otherwise inadmissible. I obtained very little assistance from it because it does not address the principal issues before me. However, I was satisfied that some of the estimates of vehicle movements over the driveway adjacent to the common area may be in doubt.

15. I would therefore dismiss paragraph 1 of the application, uphold paragraph 2 of the application (it being an order that I have already made) and I would dismiss paragraph 4 of the application. There is no basis before the Court for the ratification of the 2017 AGM Minutes; it is not a matter before me on this application.

16. I was informed at the hearing that Ms Ras wished to sell unit number 3 and she needed her mother’s assistance in preparing her unit for sale. The restrictions of the undertakings rendered that impossible. Ms Marilyn Ras satisfied me that there was a number of tasks that she needed to perform for her daughter in order to prepare the unit for sale. She has real skills as a handyperson.

17. Conversely, it was very clear that as a result of the undertakings given, a very equable peace had come to the site that had not been experienced before. The undertakings had created this situation.

18. Notice was given that Ms Ras and Ms Marilyn Ras wished to withdraw their undertaking but at the same time informing me that their aim was for Ms Ras to sell unit 3 as soon as possible. I informed Ms Ras and Ms Marilyn Ras that regardless, I maintained a discretion to make orders under s 142 of the Community Titles Act. Both of them indicated their understanding of that position. In the result, the undertakings were withdrawn and I made orders for the matter to be adjourned to 9 June 2018 for review of progress. It was then my intention to review the matter and not to publish this judgment until the Court became aware of developments concerning the sale of unit 3.

19. The Court has now received a further application from Ms Ras for this Judgment to be delivered in light of the proposed sale of unit 3. I have also received information from the other lot owners which indicates reasonable use of the common areas. One matter brought to my attention is that the promotional material of the agents retained by Ms Ras suggest that the area adjacent to the garage wall of unit 2 is a second car park. In the hearing before me on 17 May 2018 I was shown video of an attempt to park a late model Toyota Corolla Sedan in that space. I earlier described this evidence as risible. The driver of the car backed into the space, could barely open the driver’s door to alight from the vehicle. A car parked front in to the space would create a dangerous situation when backing out because of the driver being blind to other users of the common area. Collisions in the common area are both foreseeable and inevitable. These are just two observations that arose from my viewing of the video. There are many more. This is a matter for Ms Ras and her agent.

20. There is no evidence before me that the applicants have reverted to their previous behaviour. Therefore, there is no basis currently to exercise any injunctive power. I consider it appropriate now to remit the whole action to Mr Gumpl for further consideration of any urgent applications by any of the unit holders. This is because the task of this Court is complete by the making of the orders which follow, the nature and terms of which require further consideration in the Magistrates Court. Thus, there remains an action to remit but not under s 38 of the Magistrates Court Act.

21. At the hearing on 9 June, it became clear to me that Ms Ras was wavering on her plans about the sale of her unit. She was attempting to suggest that the alienation of part of the common area would have an adverse effect upon the sale price achievable for her unit. There was no evidence of this and it does not accord with other proven facts before me. The impression I obtained was that it is far from certain that Ms Ras would sell unit three and that is her choice. I will finalise the orders that I intend to make in that background.

22. For the avoidance of any doubt, a summary of my reasoning on this application is as follows:

    1.The order appointing the Administrator was appropriate in the circumstances.

    2.From the time of the appointment, the Administrator had the powers prescribed under s 100 of the Act.

    3.At the time of the appointment there was no application before the Court under ss 142, 133 or 149 of the Act seeking orders about the common area.

    4.On 7 March 2018 there was no basis for the Court to make any orders to do with the common area and any order approving any such proposal is set aside.

    5.The contract of sale made by the Administrator of a portion of the common area is specifically enforceable by the purchaser.

    6.The decision of the Administrator to sell a portion of the common area was reasonable in the circumstances and no basis under the Act or otherwise has been made out such that the Court would interfere with that decision or the exercise of the discretion of the Administrator.

    7.It will be necessary for the Administrator to arrange for the amendment of the by-laws and the deposited plan and the costs thereof should be fully born by the purchaser.

    8.There was no legal basis for the Court to make any order preventing a member of a Community Corporation from commencing a legal action as provided for under the Act or otherwise.

23. I have an unfettered discretion on costs. In the exercise of that discretion, Ms Ras has had some success. I make no order as to costs.

24. In the result, I would make the following orders:

25. 1.     That the decision of the learned Magistrate be reversed; and

26. 2. That I substitute my decision in the following terms: Pursuant to s 142 of the Community Titles Act and in respect of the whole of the land more commonly known as 3 First Street Hallett Cove SA:

    1That Ms Marilyn Ras be joined as an applicant to these proceedings.

    2That Ms Nicolette Ras remove all video cameras installed in or about lot 3 of the property.

    3That the administrator Mr Russell prepare for consideration by the lot holders new bylaws that contain a prohibition on any lot holder using video surveillance of any other owners of lots and the common property of the Corporation.

    4That Mr Russell, as the Court appointed Administrator, prepare for consideration by the Corporation, new bylaws which require that any person parking a motor vehicle on the common driveway do so only for a maximum of a 10 minute period.

    5That Mr Russell, as the Court appointed Administrator of the Corporation, prepare for consideration by the lot holders at a meeting a new bylaw requiring the removal of all signs fixed upon the property by any lot holder.

    6That the applicant Marilyn Ras be precluded from attending any meetings of the Corporation as proxy or otherwise.

    7That all of the meetings of the corporation be chaired by an independent person until 30 June 2019.

    8That no lot owner or any resident or visitor to the premises of any lot owner use the common property of the Corporation for the purposes of exercising.

    9That Mr Russell be appointed as the Administrator of the Corporation until 31 December 2018.

    10That the purchasers pay for the costs of the creation of any new by-laws and amended deposited plan consequent upon the settlement of the contract between the owners of lot 2 and the Administrator for the sale and purchase of that portion of the common area described in the report of the Administrator to the Court dated 28 February 2018 and referred to in paragraph [5] hereof.

    11Further consideration of the orders described in paragraphs 1 to 9 hereof adjourned for further consideration before Mr Gumpl in the Adelaide Magistrates Court.

    12I make no order as to costs.