To some, a $10,000 fine for illegally parking on the common property seems like overkill; to others, it might seem just the sort of action that should be dealt out more often! And depending on your individual experience with parking within an owners corporation (and I know you all have at least one story!), it’s likely that this largely impacts on which side of the fence you sit.
Well believe it or not, this – a $10,000 fine – is exactly the punishment the Victorian Civil and Administrative Tribunal (VCAT) handed down to an owner in 2015 for continuing to park on common property (Kanter v Milroy Investments Australia Pty Ltd).
Like most tales, however, it is not quite as simple as a good guy, a bad guy, and a parking fine: this particular matter is one that spanned over an eight year period and includes countless incidents, breaches of rules, VCAT applications, police involvement, and – just like every good dispute – plenty of abuse.
So let’s look at the key factors that contributed toward this decision by VCAT and how, as lot owners, we can use the lessons learned from this tale to ensure a compliant (and dispute free!) owners corporation.
So, where did it all begin?
This dispute began in 2007 when two neighbouring lot owners, who shared a driveway in an industrial estate, disagreed about using the common property driveway to park vehicles. One lot owner continually parked, or allowed vehicles to stand there for deliveries or for mechanical work to be undertaken. The other, perturbed, lot owner disputed this use of common property due to it being a breach of the rules, and it negatively impacting on his business, primarily through access issues.
The perturbed lot owner jumped through all the right hoops: made a formal owners corporation complaint, went to mediation, he progressed the matter to VCAT which resulted in further mediation, all of which proved unsuccessful. Finally, twelve months later, the two lot owners agreed to split the common property and purchase it from the Owners Corporation and to delineate their newly extended private properties by a dividing fence. The very short version of the next nine months is that the split didn’t occur, as no agreement could be reached as to where the boundary should be located.
Another eighteen months later, the perturbed lot owner again took the matter to VCAT, citing several rules that he believed the other lot owner was in breach of. Largely, the VCAT member found that this was true and ordered that the lot owner stop obstructing common property and not allow vehicles to be parked or remain on common property.
VCAT has told him to stop: what next?
It didn’t stop. The continued disregard for the parking rules showed no sign of ceasing and, by this stage, the relationship had deteriorated so significantly between the two lot owners that there are countless documented incidences of verbal and physical abuse by, not only the lot owner and relatives, but also by customers that visited the lot! In fact, the perturbed lot owner suggested he contacted police between 15 to 20 times in a twelve month period due to threatening or abusive behavior, one of which led to a customer being charged and convicted of assault.
Over this period, the perturbed lot owner took hundreds of photos and videos on a very regular basis to document and record the behavior that constituted the breach of the rules. Ultimately, it was this evidence that VCAT later relied on to substantiate the very large fine imposed.
Where’s the bit about the $10,000?
Finally, in 2014, after trying multiple other avenues for mediation (such as the Dispute Settlement Centre of Victoria and Small Business Victoria), the perturbed lot owner again filed an application with VCAT, this time for contempt of court proceedings. In early 2015, the VCAT member found primarily in favour of the perturbed lot owner, deciding that the other lot owner continued to not only flout the Rules, but also the clear direction and previous order of VCAT itself, and issued a fine of $10,000 for contempt of court.
The most important thing to take away from this order, however, are the reasons for the order itself:
- ‘…serious and persistent breaches of the Rules…’
- ‘…the breaches were voluntary and deliberate and not merely as a result of inability to comply, or lack of comprehension…’
- The complaints documented in the latter three years ‘bear a remarkable similarity’ to the complaints which led to the VCAT order in 2011 to stop breaching the Rules
- The offending lot owner was capable of conducting business without breaching the Rules.
How does this apply to me?
The fine imposed in this particular tale is for a very large amount, and to some, might seem excessive for a mere parking fine. However, this is far from being a ‘mere parking’ issue. The continued and blatant disregard for the Rules over an extensive period of time, the impact that it caused to another lot owner and his business, and alternative – and legal – parking arrangements not being utilised, is what primarily led to this hefty fine being enforced.
While I will always advocate for positive and cooperative solutions to disputes between lot owners, unfortunately there are times when, despite your best efforts, you are unable to resolve a dispute amicably. If you find yourself in a situation like this, there is hope: VCAT has made an unambiguous statement in this matter that it will not tolerate relentless breaches of the Rules and has the means available to enforce this stance.
If you are ‘the perturbed lot owner’ in this tale, the motto is simple: keep a clear head, document exhaustively, and be persistent. And if you are the ‘offending lot owner’ the lesson is just as evident: best to keep a spare $10,000 handy, just in case VCAT come knocking. Or stop breaking the Rules… just a thought.