Wilson v Body Corporate for Kareelah Mooloolaba

[2013] QPEC 10

[2013] QPEC 10

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN

P & E Appeal No 406 of 2013

FRANCIS ROBERT WILSON	Applicant
and
BODY CORPORATE FOR KAREELAH MOOLOOLABA COMMUNITY TITLES SCHEME 30687	Respondent

BRISBANE

..DATE 21/03/2013

ORDER

CATCHWORDS

Environmental Protection Act 1994 – Applicant complains of noise nuisance from air conditioners outside the respondent body corporate’s building, which is adjacent to his, in breach of an alleged agreement with the developer to locate them in a more remote location - body corporate seek summary dismissal of application on the basis that four of its lot owners are the proper respondents - application to dismiss considered as having priority over the original applicant’s one seeking an order that the parties hold a without prejudice meeting - both adjourned to a fixed date - body corporate ordered to identify and give addresses of those it says are the proper respondents

HIS HONOUR:  I'm going to make an order in terms of the initialled draft which is the one Mr Davis supplied.  It's amended by the renumbering of the paragraphs there so that they're 2 to 6.

Paragraph 1 is an order that the respondent by the close of business on the 22nd of March 2013 notify the court and the applicant in writing, which may be by email, whether it contends that any person or persons being owner of a lot in the community titles scheme are necessary respondents rather than or in addition to it and, in respect of any additional respondents, provide current names and addresses for the purpose of facilitating service of the proceeding, amended if necessary, on them.  The date in paragraph 2 and in paragraph 5 becomes the 11th of April 2013. 

Those orders are made in respect of a cross application before the court within Mr Wilson's originating application which under the Environmental Protection Act complains of a noise nuisance attributable to air-conditioning units located on his side outside the respondent's building. I understand that there's also a complaint about a water pump and maybe other items.

Mr Wilson tells the court that for a very long time, indeed prior to the completion of the building, he attempted to preserve a reasonable noise environment for himself to the extent of making a deal with the developer that air-conditioning equipment would be relocated away from his side of the building.  He says he paid money to secure that.  In the ensuing period air-conditioners, which he says are unreasonably noisy, indeed unlawfully so, have been moved back where, according to the deal, they ought not to be.

His application, returnable today, was that the parties be ordered to use their best endeavours to reach reasonable agreement to reduce noise nuisance to prescribed levels.  He also wants external items of air-conditioning equipment located on common property disabled until the noise nuisance issue is resolved by the court.  The rug has been pulled from under him today by the body corporate's cross application seeking a striking out of the originating application and summary judgment.  It's open to a respondent to get a defective application disposed of on such a basis.  Its argument is, as I understand it, that it, notwithstanding that it might have some policing powers in respect of activities in the building, is not a proper respondent, that the air-conditioning items belong to and are the responsibility of individual lot owners.

Mr Wilson has been outflanked for today's purposes.  I've had some difficulty in getting him to appreciate that what must be dealt with first is the respondent's application so that it's pointless presenting the history of his complaint and indeed the steps that he's taken by way of getting noise reports and the like to the court.

I'm not impressed with the body corporate's approach in the sense that it appears to me totally resistant to participation in any cooperative exercise with a view to looking into
Mr Wilson's complaint and, if there's anything in it, seeking a solution.  One would think that neighbourliness requires rather more than achieving a tactical victory at this stage and leaving the major issue simmering.

In relation to Mr Wilson's application, it would seem to me that the preferable outcome would be the ordering of a mediation using the good offices of the registrar, which would be inexpensive for the parties, once it's known just who they are.  Mr Wilson may decide to dig his heels in and stand or fall on his view which is supported by written submissions subject of leave to read and file but not appropriate for the court to consider in detail today.  There is some prospect that on the 11th of April the Judge will have time to look into this matter in greater detail than has been feasible today.  No guarantee can be given obviously that, if there are to be additional respondents, they will necessarily have been given sufficient time to be ready on that return date.

The orders are that the respondent by the close of business on 22nd of March 2013 notify the court and the applicant in writing, which may be by email, whether it contends that any person or persons being owner of a lot in the community titles scheme are necessary respondents rather than or in addition to it and, in respect of any additional respondents nominated, provide their current names and addresses for the purpose of facilitating service of the proceeding, amended if necessary, on them.

I might interpolate that Mr Davis has told the court that there are only six lot owners in the scheme, four of which, as he understands it, have responsibility for air-conditioning equipment.  It may be assumed, I think, that, representing the majority of the body corporate, they are controlling the stances it takes.

The following paragraphs of the order adjourn the respondent's application to the 11th of April, require it to file and serve the affidavit material it relies on in support of its application by the 27th of March.  The applicant,
Mr Wilson,is to reciprocate by the 9th of April.  By paragraph 5, the proceeding including this application for summary judgment and the application filed 12th of March 2013 is adjourned to the 11th of April 2013.  Costs reserved.  Thank you.

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