There are many sad stories I’ve heard from residents of Hope Island in the six months since I first moved into the resort. Stories of people who made the mistake of speaking out against what they saw was an injustice or preferential treatment shown to one resident but denied to another. The residents are never quite the same after having a run in with the ‘power people’. Something is gone when the dust settles and the excitement of living in this resort is tainted.
The ‘power people’ are a force to be reckoned with and sometimes in their zeal to have things done by their version of ‘the rule of law’ they leave a trail of destruction in other peoples lives. I’ve heard told of a woman who loved her home, but lost it. Another of a man who loved his boat, but lost it. But perhaps the saddest story I have heard is the one of a family who loved their son, and lost him.
To all of you who say “I don’t care about body corporate issues” or “I don’t care how they run the place as long as my levies don’t go up” - I urge you to read this story. Because one day you may cross the ‘power people’ and your life may never be the same again.
A STORY OF LOST HOPE
Professor Lawrence Howes and his wife Dr. Jan Howes loved the idea of living at Hope Island Resort when they moved up from Sydney to take positions at the Gold Coast Hospital. They had wanted to live somewhere that had water access for a boat, and HIR seemed ideal. Lawrence is a professor of medicine at Griffith and Bond universities as well as the University of NSW. He is listed in both the Who’s Who of Australia and the Global edition of Who’s Who for his contributions to medicine and medical research. Jan is also a Doctor and medical researcher.
In early 2004 they arrived at Hope Island ready to ‘live the dream’ with their three children, Ashleigh 17, Christopher 19 and Lauren 21. Like so many who choose to live in this ‘lifestyle community’, the Howes felt Hope Island was going to be a great place for them now and in the future. They had sold their old boat in Sydney so one of the first purchases after a house was a new boat. The small ski boat they bought took pride of place beside their pontoon on Killymoon drive. Christopher had a passion for wake boarding and would regularly head out on the boat with the family and friends. He was studying marketing and had a part time job at the boardwalk tavern. Life was good.
Jan Howes noticed a number of lifting devices around the canals and rivers of the resort that were designed to lift boats out of the water to assist in the prevention of fouling of the hull. She thought this would be a great idea for their own boat, as it is a performance ski boat and the hull was not suitable for anti fouling treatment. They were particularly impressed by the hydro lift that they had seen further down Rosebank way at Alan Yovich’s waterfront home (pictured below). Of course the Howes boat was less than a quarter of the size of Alan’s so didn’t need anything as big or lavish as a hydro lift. After looking around at what was available on the market at the time for their boat size they settled on a marine product called an “Air Dock”.
Above: A shot taken from Alan Yovich’s back yard showing his boat sitting on top of his Hydro lift. The Hydro lift has been used by Alan since he moved into Hope Island Resort back in 1996.
Above: The “Air Dock” is a far smaller device than Alan Yovich’s Hydro Lift (the above photo shows an “Air dock” in use). Water is pumped into the “Air Dock” and it sinks, the boat is positioned and then air is pumped back in, displacing the water and causing the the vessel to raise up out of the water.
A short time after having the Air Dock installed Jan Howes received a letter from the body corporate (as she recalls it may have come via McCullough Robertson because the first call she made after reading the letter was to McCullough Robertson). The letter stated that the device was located beside her pontoon without permission from the PBC and was contravening the Hope Island Secondary Thoroughfare By Law 2.04.01 :
‘A PERSON MAY NOT CONSTRUCT, MODIFY OR VARY A MOORING SITUATED OR TO BE SITUATED IN OR ON ANY PART OF THE WATERWAY WITHOUT RECEIVING THE PBC’S PRIOR WRITTEN APPROVAL’.
Mrs Howes recalled speaking to McCullough Robertson and from memory was informed that it is only a minor infringement but that she should have sought permission from the PBC first before installing the device.. “Don’t lose sleep over it. Just send a letter to the PBC requesting that you be allowed to have the device beside the pontoon”. Shortly afterwards Mrs. Howes drafted the letter to the PBC seeking permission to maintain the Air Dock and awaited a reply. Life can be fairly simple sometimes. With the right paperwork in place she thought the matter was dealt with.
However on the 9th August, 2004 Mr. and Mrs. Howes received another letter from the PBC refusing them permission to keep the air dock at their mooring. They were told they would have to remove it. As there were other lifting devices around the resort, including Alan Yovich’s large Hydro Lift, the Howes again questioned the PBC’s decision and sought to find out why it appeared that other people could have a device that did a similar job yet they could not. No progress was made in attempting to negotiate with the PBC and the Howes were told that if they had an issue they should take it up with the referee.
So they did.
Mr. Howes put in a submission to the Commissioners office of the BCCM asking the referee for a ruling together with an interim order asking that the airdock not be removed until the referee has made a decision.
The PBC and secretary Tim Carrigg agreed to take no further action to enforce the PBC order to remove the Airdock until the outcome of the referee’s decision was known.
The PBC then put in a submission to the referee’s office stating their case. They wrote, among other things, that they had not shown any discrimination towards the Howes because the other lifting devices that were in place ‘were in all likelihood there illegally’. The exception to this was Alan Yovich’s Hydro lift. Alan had been one of the early developer/owners and his Hydro Lift had been erected before the Development Control by-laws were put in place. This in essence was true. The development control by-law stating that:
“DEVICES TO ELEVATE VESSELS FROM A WET BERTH LOCATION ARE NOT PERMITTED”
did come into effect after the Hydro Lift had already been put in place, but the Hope Island Secondary Thoroughfare By Law 2.04.01 that was originally quoted to the Howes as the reason they were not permitted to keep their device had it’s origins at the very beginning of the resorts development, before Alan Yovich had called Hope Island home and the Hydro Lift had been installed.
On the 12th October 2004 the referee dismissed the interim order on the grounds that:
Extract from the order of the referee.
TIME PASSED AWAITING THE REFEREES DECISION.
On the 25th January 2005 the Commissioners office held a tele-conference with the PBC and McCullough Robertson and the referee questioned why, IN THE PBC’S Submission more attention had been paid to the Development control by-law relating to the elevation of the vessels than the main HIPBC by-law (2.04.01).
Regardless of which by-law was quoted, in the referees opinion the applicant Mr. Howes was in breach of the PBC by-law in that he did not seek permission from the PBC to moor the airdock at his mooring and therefore should comply with the request for its removal. The referee then questioned the PBC in relation to the allegation that other devices were already in place in the resort and this formed a basis for discrimination.
The PBC stated that “any other air dock may has (sic) been approved in waterways at Hope Island Resort is irrelevant to this issue”.
The referee must have seen the inconsistency of this statement as he pointed out that many of the consumer protections found under the Body Corporate and Community Management Act of 1997 had no application in this case as HIR was under the BUGT act. He gave particular mention to the clause in the BCCM act that states that ‘the body corporate MUST act reasonably in anything it does’ (subsection 1). When the referee again asked why other similar devices were allowed in the resort, McCullough Robertson reiterated that the other devices were not approved and were probably there illegally. In relation to Alan Yovich’s Hydro Lift in particular, McCullough Robertson told the referee that “the device was in a ‘state of disrepair’ and had partially sunk and it was likely that the body corporate would shortly begin to take action against the owner in relation to this dock”. Once it was gone “he would not be allowed to replace it”.
BASED ON THIS INFORMATION, the referee handed down a ruling that the PBC had not acted in a discriminatory way. The air dock should be removed within six weeks of receiving the referees order, which would be 11th March, 2005.
Mr. Howes received the order in the mail on the 28th January 2005. The link below will open the Referees ruling for your viewing.
Referees order Jan 2005 re air dock.pdf
After receiving the ruling from the referee Mr. Howes felt he had been singled out and discriminated against. The fact that the PBC had said “any other air dock may has (sic) been approved in waterways at Hope Island Resort is irrelevant to this issue” and the fact Alan Yovich’s Hydro Lift remained in place in a state of disrepair confirmed that fact in his mind.
Mr. Howes sent off one more letter to the PBC asking them to reconsider their decision not to allow him the use of the airdock. The letter was sent to the PBC and on the 21st February 2005 the reply was received. The Howes could not keep the device and it must be gone by the 11th March. The Howes in their frustration decided to take a stand and not remove the device. As far as the Howes were concerned, the airdock was doing no harm to anyone and nothing was being done about removing the others. Jan Howes recalls speaking to Alan Yovich about their decision to keep the airdock and Alan told her “it’s no good trying to fight them Jan, you won’t win”.
One can understand the feelings of discrimination that the Howes must have felt at the time. The referee who put the order in place would later confirm that he did not have the jurisdiction to make the original decision to remove the dock, but in the meantime the PBC was not going to stand for such blatant disregard of the ‘rule of law’.
On the 24th May 2005 Timothy Joseph Carrigg on behalf of the PBC commenced proceedings in the Brisbane Magistrates court stating that Lawrence Guy Howes did commit an offence by not complying with an order from the referee to remove the airdock. Having been issued papers telling the Howes the court action was proceeding the Howes begun to question whether it was worth the fight. In the end they agreed to remove the airdock and put an end to the struggle. When the magistrates hearing came up for mention solicitors on both sides agreed to dismiss the case. In July the Howes removed their boat and airdock and John Hughes, at the time managing director of Walker Corporation - owners of Hope Island Resort, offered the Howes a discount on a berth over at the boardwalk marina and the boat and airdock were moved there.
On the weekend of the 29th October 2005 Christopher Howes and some friends spent the day wake boarding on the Coomera river. He worked that Saturday night at the Tavern and by the time the night was over and the clean up had been done the sun was coming up. Christopher and his friends decided to take the boat out for an early morning run. Christopher still had the keys to the boat in his pocket from the day before. So they took the boat out and headed up the Coomera river. They arrived at the Coomera River bridge, anchored and begun jumping off the bridge into the water. It was at that point that tragedy struck. Christopher did a dive into the water and hit his head on something and disappeared. His body was later recovered. The devastation that the Howes family felt cannot be measured. Christopher was their only son, a very popular young man, a good student with his whole life was ahead of him.
Although no blame can be apportioned to the PBC for this very sad incident, Jan said the family felt that had the boat been on their mooring at Killymoon Drive that things could have been different. Jan said she never slept deeply when one of her children were out, always keeping one ear open waiting for their arrival home. I know we do the same thing with one 21 year old son. Jan said she would have heard the boys come in and got up to check they were alright, as she often did. If they had been talking about taking the boat out again at that time of the morning she would have warned against it. No one really knows what might have taken place. All of us at one time or another have said ‘if only’. It is understandable that a parent in the midst of the pain being felt from the loss of a child would not only blame themselves but also look to blaming others. Flowers were sent to the Howes from the body corporate.
Towards the end of 2005, with the price of the marina berth that John Hughes had offered them going up quite substantially in rent, a friend outside the resort offered to let Laurie and Jan use their mooring for the airdock and boat. The kind offer was accepted and the airdock was moved from the marina to the new river mooring where it was submerged and remained for many months. In another cruel twist for the Howes, a close family friend of forty years, who had looked at Christopher as a second son fell into a deep trough of depression following Christopher’s death, and three months after Christopher’s passing took his own life at the age of 62, saying he was going to check and make sure Christopher was alright. The Howes family were shattered a second time.
In mid March of 2006 the decision was finally made to sell the airdock which the Howes had purchased for $12,000.00. They were told they might get half of that if they brought the device up to scratch. It had been submerged for a time and needed some attention. They discussed what to do and decided to write to the PBC one final time informing them they were going to bring the airdock back to Killymoon Drive.
On the 20th March 2006 Jan Howes wrote to the body corporate informing them of return of the airdock to Killymoon drive.
No response to her letter was received. Jan says she rang CMS twice over a period of time and left a message for Tim Carrigg to return her call but he never responded (Tim Carrigg denies any contact was made in his affidavit). Nine months passed as Jan Howes waited for approval to bring back the airdock and boat. The airdock remained submerged becoming of less and less value and finally Alan Yovich’s Hydro lift sunk and was removed. But much to the shock of the Howes, Alan Yovich had a brand new Hydro lift installed. Laurie and Jan could not believe that this could be allowed to happen after all they have been through. They decided nine months was long enough to wait for an answer from Mr. Carrigg and the PBC to their letter and the airdock was brought back to Killymoon Drive so Laurie Howes could begin work on it over the Christmas period of 2006 in preparation for sale.
Two days after Christmas, on the 27th December 2006 the body corporate became aware the airdock was back at Killymoon Drive and someone was sent around to take photographs of the device at the Howes mooring.
On the 22nd January 2007 Stuart McNaughton from McCullough Robertson wrote to the Laurie and Jan Howes informing them that they had again breached the body corporate rules and the referees order by bringing the airdock back to their pontoon (at a later hearing in the Southport Magistrates court the judge ruled that, in terms of the referees order, there was nothing to stop the Howes bringing the airdock back once it had been removed in line with the referees order).
The Howes did inform McCullough Robertson the day after receiving the letter that the device would only be there a matter of weeks not months as the airdock looked like it might have a buyer. Despite this on the 30th January 2007 McCullough Robertson again sent a letter stating that if the device was not removed by the 1st February 2007 (two days later) court action would be taken and indemnity costs sought should they have to institute proceedings. (letter link)
Laurie and Jan Howes could not believe it. They had already told them it had looked like being sold. Nothing the PBC promised the referee had been done and more lifting devices had appeared. Alan Yovich’s Hydro lift had been replaced. Also it had been confirmed that the Howes airdock had actually been registered by Queensland transport as a marine vessel for two years.
Unfortunately any sense of reason or fair play fell on deaf ears and on the 19th February 2007 Tim Carrigg filed another complaint and summons against Mr. Howes with the Magistrates court. The hearing was set down for the 18th March 2007. The decision to pursue the Howes in the magistrates court was minuted on the 19th February 2007 executive committee meeting of the PBC. It stated that the PBC lawyers will attempt to recover the maximum costs awarded by the magistrate.
19 FEBRUARY 2007 - EXECUTIVE COMMITTEE MEETING OF THE PBC - MINUTE
The hearing in the Southport magistrates court was set aside for a time as Tim Carrigg decided to go after the Howes in the Queensland Supreme Court.
On the 8th May 2007 Tim Carrigg, without the approval of the body corporate, brought an originating application to the Queensland Supreme Court on behalf of the PBC requesting an order for the removal of the airdock and $15,000.00 in costs. Mr. Carrigg was at the time the secretary for the PBC executive committee but was not the PBC itself, which is a separate legal entity that could sue and be sued. This latest action by Tim Carrigg came as a complete surprise to the Howes. The link below will open the affidavit of Tim Carrigg on behalf of the PBC to the Supreme Court.
Supreme Court affidavit TC 80507.pdf
It must be said that Tim Carrigg did not have the power or authority to make the originating application to the Supreme Court on behalf of the PBC. The hearing in the Supreme Court was set down for the 18th May 2007.
It was not until the 17th of May 2007 that a flying minute was sent from McCullough Robertson to four members of the PBC executive committee seeking their endorsement for what Tim Carrigg had already done on their behalf.
The originating application was submitted to the Supreme Court on the 8th of May on behalf of the PBC but it was not until the 17th of May, the day before the hearing that the PBC committee members received the client agreement and the paperwork to vote YES to what had already been set in motion. The four PBC committee members to sign off on this were Roy Robertson, Vincent Vine, Geoff Smithwick and Margaret Walker.
As the Supreme Court date approached Nyst lawyers, who were acting for the Howes at the time, suggested the best thing the Howes could do would be not to argue the case, plead guilty, pay the fine and remove the airdock. The Howes agreed to this. They just wanted it over. The chamber hearing at the Supreme Court was presided over by Her Honour Judge Atkinson. The judge read the statements, heard the case and then asked the legal team representing Tim Carrigg and the PBC why they thought they should get such a high amount ($15,000.00) in costs for ten minutes in chamber? Mr. Everson, representing the PBC, stated that there had already been a fair amount of work and costs incurred in relation to the case. The judge acknowledged that an appearance had already begun but the case had been set aside. Mr. Everson replied that the original action in the magistrates court was ‘compromised’ because the Howes had said they were going to remove the airdock.
Mr. Everson went onto say (quoted from the transcript)
“because of the very provocative, ongoing conduct of Mr. Howes, we have had to take the matter to the most expensive court, to get them to take it out and leave it out. When you look at their conduct and you look at the fact that we haven’t engaged in any vigilante action, you are the only court to have the jurisdiction to make them do what we want, our costs need to be seen in a fairly generous light”.
“But not too generous” said Judge Atkinson and awarded costs against the Howes in the amount of $7000.00.
Mr. Everson questioned the amount as the original request for costs was put at $15,000.00 and he quoted a Hope Island body corporate by-law which stated:
“WHERE A PROPRIETOR OR PROPRIETOR’S INVITEE HAS NOT COMPLIED WITH ONE OR MORE OF THESE BY-LAWS, THE PROPRIETOR WILL INDEMNIFY AND KEEP INDEMNIFIED THE BODY CORPORATE AGAINST ALL LOSSES, CLAIMS, COSTS ET CETERA”
The judge said that she thought $7000.00 was a reasonable indemnity costs award.
This money, on top of the nearly $20,000 that the Howes had already spent on their own legal costs, put pressure on the Howes financially. It didn’t take McCullough Robertson long to send a bill for the $7000,00. It turned up via the Howes solicitor within 7 days of the hearing requesting immediate payment. It had been a long, hard, costly and senseless battle. The Howes - as Alan Yovich had predicted - did not win. In fact they lost far more that they ever dreamed they could. The airdock was sold, the Howes found another $7000.00 from somewhere to pay the awarded costs and returned to a quieter life in Hope Island Resort, tired, disillusioned and beaten.
The body corporate and the PBC spent the weeks following the Supreme Court victory tallying up what they had spent with McCullough Robertson, and on the 23rd July 2007 sent out a circular to all residents in Rosebank:
The reason for sending out this circular is questionable in my opinion. CMS and our committees have never been very forthcoming on the amounts of money that they spend on our behalf. Did it serve in some way to further humiliate the Howes in front of their neighbours? The costs of $26,000.00 (eventually total costs from both sides in this case would approach $100,000.00) of our money could certainly have been better spent doing something constructive rather than destructive.
It was a case of one rule for us and one rule for them. It reminded me of what Vincent Vine had said in an letter posted in August of this year to the residents of Riverleigh Drive following our attempt to have a fresh AGM called. He stated that if Suvendu Bose or myself did get voted onto the Riverleigh Drive committee we would find ourselves ‘on the outside’ - hobbled and unable to carry out our duties. Clearly the ‘inside / outside’ structure is found not only at a committee level but also at the PBC level.
The streets of Hope Island resort are littered with stories like this one. Some stories may not be as severe as the Howes but the end result is the same. Residents are left discouraged tired and beaten. The Howes certainly felt that.
But as far as Tim Carrigg was concerned, this was not over.
Mr. Carrigg was still determined to continue on with the legal fight in the Southport magistrates court. Wheels were again set in motion and a hearing was set down for the 8th April 2008. More money passed to McCullough Robertson for representation. More money had to be paid out by the Howes to a new law firm for their legal guidance. For the Howes the thoughts of having to find more money and go through it all again was almost more than they could cope with. Laurie Howes applied for a month off work because of stress and depression.
The 8th April 2008 finally came around and a hearing took place. Herdlaw lawyers this time represented the Howes and McCullough Robertson represented Tim Carrigg and the PBC. Vincent Vine and Tim Carrigg sat in the court waiting to hear the outcome of the case. As the hearing began McCullough Robertson’s representative requested that the judge allow amendments to the case.
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1.They would like the dates of the offence to be changed from ‘on or about the 27/12/06 to 13/02/07 to a period defined as between 10/3/05 and the 26/05/07.
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2.A request to change the complainant from Tim Carrigg to the Hope Island Primary Body Corporate.
The Judge denied both of the requests and after looking over all the evidence and hearing the information put forward from both sides, Magistrate O’Driscoll ruled that the case was fatally flawed. It should never have been brought to the magistrates court. Costs were awarded against Tim Carrigg in the amount of $14,000.00. When the magistrate went to ask a question of Mr. Carrigg towards the end of the proceedings, his Honour was shocked to find that Mr. Carrigg had not even bothered to stay around long enough to hear the decision. He had already left the courts.
A final assessment of the Carrigg Vs. Howes case was sent to Laurie and Jan Howes following the case from their lawyer Robert Herd.
The PBC also received a letter from Robert Herd saying that ‘under no circumstances’ must any money come from the PBC in relation to this case.
A full copy of the Robert Herd’s letter can be found on the link below:
Full_Herdlaw.pdf
Finally here is a man prepared to represent the rights of the residents. Robert Herd is also going to be giving independent legal advice on the fifteen year agreements paid for by the residents.
The judge ruled the awarded costs of $14,000 had to be paid no later than the 26th August 2008. Remember McCullough Robertson sent the bill for $7000.00 seven days after the Supreme court decision was handed down. It was paid by the Howes immediately. In the case of Tim Carrigg he had from the 8th April until the 26th August 2008 to pay the costs, but when the 26th August arrived no monies had been forthcoming.
The 26th September passed and no monies were forthcoming.
And now we have just passed the 26th October, with no monies forthcoming.
If we look at the PBC minutes from June of 2008, we see the reason that the monies are not forthcoming. McCullough Robertson have advised that it is felt “the judge made the wrong decision”, and therefore they feel no monies should be paid.
PBC Executive Committee meeting minute - June 2008
Here we have a PBC that is prepared to spend a further $17,000.00 on the final magistrates court legal costs to ensure Mr. Carrigg isn’t out of pocket, yet WILL NOT spend a fraction of that amount to obtain truly independent legal advice in regards to the fifteen year agreements that they have written and are endeavoring to place us all under. Legal advice commissioned by Vincent Vine and Geoff Smithwick is not worth the paper it’s written on. Independent legal advice should be just that - independent.
Where is the ‘rule of law’ that was so freely bandied about by one individual in our community in this whole matter? Where is the ‘rule of law’ when it comes to using our money for disputes that are not only petty, but would probably not be permitted under the BCCM act. Remember the referee who pointed out that under the BCCM act the body corporate MUST act reasonably in anything it does’.
It is these ‘power people’ who have participated in one way or another in this sad, unnecessary case who now ask us all to enter into this new fifteen year agreement that will see them given even greater powers than they do now. It would appear to me that we have reached a point where some of the power that already resides with these people should be dismantled, not increased.
As a footnote to this long and drawn out fight, a minute from an executive committee meeting of the PBC on the 11th February 2008 tabled a resolution to waive the prohibition of non permanent floating devices. This was two months before the hearing in the magistrates court. If that resolution is passed it will be a good thing for many future residents.
But for the Howes family it will be a case of too little too late.
