If You Cannot Prove It… Be Like Elsa And ‘Let It Go’

March 26, 2021

Covid-19 lockdowns appear to have provided fertile ground for disputes in Queensland Community Title Schemes.  Montego Sands [2020] QBCCMCmr 160 is a case in point.

In Montego Sands the Body Corporate brought an Adjudication Application seeking orders to restrain breaches of the By-Laws; (a) drinking alcohol and bringing glass into the pool area and (b) relocating landscaping rocks from the common property into the  Respondent’s Lot.

The Body Corporate issued By-Law Contravention Notices.  The Respondent was subsequently spotted drinking red liquid from a clear glass in the pool area.  In the case of the landscaping rocks, the ones in the Respondent’s Lot, which looked remarkably like the ones missing from the common property, remained in place.

After considering the evidence, Adjudicator Sutherland dismissed the Body Corporate’s adjudication application.  The Adjudicator was not satisfied that there had been a breach of the By-Laws.

Why? Because the Body Corporate had not established, to the relevant standard, the necessary proof.  In an Adjudication Application where a Body Corporate alleges a breach of the By-Laws, the Body Corporate bears the onus of proof, to prove its’ allegations.

That proof must also be up to the required standard. The most familiar standard of proof is the one applied in criminal cases; i.e. proof “beyond a reasonable doubt”.  In a criminal case the judge must be satisfied, beyond reasonable doubt, that the accused committed the offence before they can be found guilty.

In a civil case, such as disputes before an Adjudicator, the civil standard of proof is applied.  This is sometimes known as the Briginshaw Test, proposed by Justice Dixon in the High Court:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description of the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.  In such matters “reasonable satisfaction” should not be produced by an exact proofs, indefinite testimony or indirect references.” Briginshaw v Briginshaw [1938] 60 CLR 336 at 362

What this means is that the more serious the allegation, the more and better proof needs to be provided; the Briginshaw Test is a “sliding scale”.  For allegations that do not involve dishonest conduct, are explicable or probable and do not lead to any particularly adverse consequences, the standard of proof is quite low.  On the other hand, serious allegations of criminal behaviour (such as for example, stealing landscaping rocks from the common property) have a higher standard of proof.

In the case of Montego Sands the allegation, that the Respondent was bringing glass into and consuming alcohol within the pool area was supported by:

  • Security system photographs, taken from a distance away, which were inconclusive.
  • A submission by the chairperson that she had observed the Respondent sitting by the pool and “drinking red liquid out of a wine glass”.
  • An unsubstantiated allegation by the Owner of another Lot.

In response the Respondent said:

  • That the “wine glass” was actually plastic.
  • That the beverage was not alcoholic.

After considering this, the Adjudicator determined that even though the standard of proof for this allegation was quite low, it was more probable than not that the Respondent had not breached the By-Law.  It was entirely possible that the “glass” was plastic and that the “red liquid” was non-alcoholic.

How could the Body Corporate have met the standard of proof?  It could have led more evidence such as:

  • More or better security camera footage, showing the Respondent pouring wine from a wine bottle into the glass, or a witness who could state the same thing.
  • A statement from a witness who enters the pool area when the Respondent is drinking the red liquid, speaks with the Respondent and smells alcohol on their breath.

In relation to the “stolen landscaping rocks”, the Body Corporate put forward the following evidence:

  • Before and after photos of the garden area next to the Respondent’s Lot, showing rocks missing.
  • Photographs of (eerily) similar rocks being kept on the Respondent’s balcony.
  • A statement from the chairperson about an area that she had been shown by her neighbour, which was adjacent to the Respondent’s Lot where rocks had obviously been removed.

In correspondence with the Body Corporate about the missing rocks, the Respondent had said that:

  • He denied taking any rocks. He purchased and brought home the rocks on his balcony with the assistance of members of his family.
  • He would provide statements from those people to that extent if required.

The Body Corporate’s allegation in relation to the rocks was, in effect, that the Respondent had stolen them.  That was a serious allegation.  Adjudicator’s decisions are public documents and a finding that the Respondent had taken the rocks from the common property and was retaining them in his Lot was tantamount to a finding that the Respondent had stolen them.

Accordingly, the standard of proof under the Briginshaw Test was much higher up the scale.  A serious allegation needs solid and extensive proof. The extant evidence did not make the grade. The Adjudicator found that it was more probable than not that the Respondent had not stolen the rocks.

How could the Adjudicator have been convinced?

  • Video camera footage of the Respondent removing the rocks from the common property and taking them into his Lot or a witness statement to the same effect.
  • A request from the Body Corporate to the Respondent to provide those statements from his family members, and the statements not being provided (allowing an adverse inference to be drawn against the respondent).

On one reading of the Adjudicator’s reasons for decision, the whole situation seems very unfair to the Body Corporate.  After all, a finding that you have breached the By-Laws does not result in you being sent to jail.

On the other hand however, looking at the matter from the Respondent’s point of view, the adjudication application is exactly the sort of thing that happens in Community Title Schemes where there are ongoing disputes, disharmony or personality clashes.

If you want to bring an Adjudication Application, or even a prosecution in the Magistrates Court, for a breach of By-Laws, then you need to establish the “points of proof” and what evidence you have in respect of each point.

The points of proof are the things that make up the allegation of a breach of By-Laws.  For example, in the case of consuming alcohol in the pool area, the points of proof would include that the person consuming the alcohol is bound by the By-Laws (i.e. an Owner or Occupier), that they were in the pool area, that they were drinking and that the fluid that they were drinking was alcoholic.

Evidence on each one of these points is required, and if the allegation is a serious one then strong evidence will be required.

If you don’t have evidence on all the points, or its not going to meet the Briginshaw Test, then the best thing to do is to be like Elsa, and just let it go…


This article was contributed by Michael Kleinschmidt, Legal Practitioner Director – Stratum Legal

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