Heritage Village Ormiston West [2000] QBCCMCmr 132 (14 March 2000)

C G YOUNGREFERENCE: 0067-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19720
Name of Scheme:	Heritage Village Ormiston West
Address of Scheme:	88 Freeth Street WEST ORMISTON QLD 4160

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate,

C G YOUNGI hereby order that John HIRST the owner of Lot 18 (known as Unit 79) must pay to the body corporate the amount of one hundred and seventy dollars ($170) in 2nreimbursement for necessary maintenance work carried out in the courtyard area of the lot by “Knights Complete Maintenance”, and if unpaid, is recoverable with any accrued penalties under the provisions of section 99 of the Body Corporate and Community Management (Standard Module) Regulation 1997 against him or any successor in title to the lot.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0067-2000

“Heritage Village Ormiston West” CTS 19720

This is the final order to an application by the body corporate against Frederick Clarke of Lot 25, which has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“This body corporate is seeking an Interim Order that would enable urgent work to be performed in the courtyard of Lot 18 (Unit 79)”

On 23 February 2000 the following Interim Order 67-2000 was issued –

I hereby order that the body corporate, through its committee, must as soon as possible obtain at least three (3) quotes from persons with the appropriate expertise, to carry out the following rectification work to the rear courtyard and courtyard structures of Lot 18 (Unit 79) –

(1)	Demolish and remove all termite infested timber from the spa cradle and surrounding structure and carry out whatever pest treatment is necessary to reasonably secure both the lot building and other scheme buildings against termite infestation and damage.

(2)	Prevent the collection of rainwater in the spa by providing an effective cover over it, disconnecting it and placing it upside down in the courtyard, or by some other reasonable means.

(3)	Fill the subsided areas of the courtyard, including the necessary removal and replacement of pavers, so as to prevent any penetration of pooling rainwater through the adjacent wall of the building situated on Lot 19 (Unit 80).

(4)	Destroy and remove the weeds from the courtyard by the application of a suitable weed poison, reasonable for the purpose and without causing any permanent damage to the soil.

I further order that the committee must select the most appropriate quote and engage the person to carry out the work at the soonest opportunity, at the initial cost of the body corporate. A copy of each of the quotes and the decision of the committee must be filed with this office.

I further order that the cost of the rectification work must be levied by notice against the owner of Lot 18 (Unit 79) under the authority of this order and which, if unpaid, is recoverable, with any accrued penalties, under the provisions of section 99 of the Body Corporate and Community Management (Standard Module) Regulation 1997 against the current owner John HIRST or any successor in title to the lot.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

(c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the reasons to the interim order, I stated –

In my opinion there are urgent circumstances that warrant an interim order for work to be carried out to the lot to both remedy the present problems and prevent probable future damage to adjacent Lot 19. It is unknown whether the respondent will return to occupy the lot, or make contact in some way, and therefore my order must countenance the present situation of his absence continuing. I am mindful that the work will be carried out without the authority or knowledge of the respondent, by tradespersons not of his choosing, and, eventually, at his cost. To ensure fairness in these circumstances, I have visited and confirmed the state of the lot and the work necessary to secure the property and health of residents in the scheme. Under the order, the committee is required to obtain at least three quotes for the work and to use its best judgement in choosing the most appropriate tenderer. The quotes, of course, may variously be for the whole of the work or part of the work.

I will also require the committee to later provide me with a copy of the tenders and a copy of the minuted decision (whether resolved in meeting or by flying minute) selecting the tenderer. I will then issue an appropriate final order in the matter. A copy of this interim order has been posted directly to the respondent at his lot address and a response invited. It is not expected that he will receive this advice, however if in the future the committee becomes aware of his whereabouts then it should forward a copy of this interim order, and any final order, to him.

By letter dated 10 March 2000, the chairperson has provided me with copies of three tenders obtained for (a) the rectification work to the spa cradle and structure and removal of the courtyard overgrowth of weeds, and (b) the reinstatement of the subsided pavers, also in the courtyard of Lot 18 (Unit 79). Copies of “flying minutes” recording the committee voting on the tenders was also provided. For both tasks the tenders of “Knights Complete Maintenance" were accepted, at a cost of $75 and $95 respectively ($170 total cost).

The work has been carried out, the body corporate has paid the account and, if it has not already done so, should issue an account to the owner of Lot 19 at his roll address for reimbursement of the amount. If it is unpaid, as I suspect will be the case, ensure that it is shown on any “Body Corporate Information Certificate” issued to a prospective purchaser.

My order is simply a confirmation of the work done and the amount paid, and the respondent’s liability for the payment.

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