Raintrees Townhouses [2000] QBCCMCmr 289 (20 June 2000)

RA MeekREFERENCE: 0095-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9802
Name of Scheme:	Raintrees Townhouses
Address of Scheme:	1 Bryce Street CALOUNDRA QLD 4551

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

Neville Douglas Chant and Patricia Dawn Cannon, the owners of lot 38


RA MeekI hereby order that the application by Neville Douglas Chant and Patricia Dawn Cannon, the owners of lot 38, for an order that -

1. Either the body corporate should take full responsibility and attend to making good all damage to unit 38 and to restore service pipe clearances. This would involve returning the internal walls of unit 38 to a true plumb and secure condition;

2. Or allow the owners to attend to repairs and reimburse owners for all costs incurred;

3. And reimburse owners for costs incurred in identifying all the problems, loss of rental income and attempts to have damage repaired,

is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0095-2000

“Raintrees Townhouses” CTS 9802

The applicants Neville Douglas Chant and Patricia Dawn Cannon, the owners of lot 38, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. Either the body corporate should take full responsibility and attend to making good all damage to unit 38 and to restore service pipe clearances. This would involve returning the internal walls of unit 38 to a true plumb and secure condition;

2. Or allow the owners to attend to repairs and reimburse owners for all costs incurred;

3. And reimburse owners for costs incurred in identifying all the problems, loss of rental income and attempts to have damage repaired.

Section 223(1) 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)).

I don’t intend to restate the applicant’s grounds in any detail, since essentially this is a chronology of events rather than a statement of the real nature of the problem. Apparently though, there has been settlement of the foundations which has resulted in damage to the applicant’s lot. The applicant’s state that –

Settlement has bowed concrete block party wall outwards and resulted in either bowing of or detaching from unit 38 internal gyprock wall and fixtures and stressing service pipes. Conclusion is that damage to unit 38 has been caused by an external structural problem and damage should be attended to by the body corporate.

The basis of the body corporate’s alleged responsibility is stated as follows –

Some preliminary investigation revealed that there has been a foundation settlement problem with the unit under 37 and on this basis we believed that it was an issue that the body corporate / sinking fund should address.

The body corporate appears to have accepted responsibility for repairs, and the dispute now centres on the extent of those repairs. The body corporate is prepared to go with a quote for approximately $800 to fix the repairs whereas the applicants consider that this quote does not include the scope of repairs they consider are required. The applicants consider that repairs in the vicinity of $3000 are required, based on a quote obtained by them.

The committee in its submission, via the body corporate manager, states that –

The committee believes that they have responded fairly and reasonably with respect to this dispute.

The committee believes that this owner wants to take advantage of the body corporate and have his unit reinstated to an unreasonably high level of perfection. The committee has previously authorised similar repairs for other unit owners to the owner’s satisfaction, but they have not been able to come to an agreement with this owner (lot 38).

Although it appears to have been assumed by the applicants, and accepted by the body corporate, I am not satisfied that the body corporate is responsible for the repairs. The basis on which a body corporate is responsible for maintenance of both common property, and parts of a lot, are set out in section 109 of the standard module. That section relevantly provides –

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Duties of body corporate about common property—Act, s 114
109.(1) The body corporate must maintain common property in good
condition, including, to the extent that common property is structural in
nature, in a structurally sound condition.
(2) To the extent that lots included in the scheme are created under a
building format plan of subdivision, the body corporate must—
(a) maintain in good condition—
(i) railings, parapets and balustrades on (whether precisely, or
for all practical purposes) the boundary of a lot and common
property; and
(ii) doors, windows and associated fittings situated in a
boundary wall separating a lot from common property; and
(iii) roofing membranes that are not common property but that
provide protection for lots or common property; and
(b) maintain the following elements of scheme land that are not
common property in a structurally sound condition—
(i) foundation structures;
(ii) roofing or other covering structures providing protection;
(iii) essential supporting framework, including load-bearing
walls.
(3) ...
(4) To avoid doubt, it is declared that, despite an obligation the body
corporate may have under subsection (2) to maintain a part of a lot in good
condition or in a structurally sound condition, the body corporate is not
prevented from recovering an amount of damages from a person (whether
or not the owner of the lot) whose actions cause or contribute to damage or
deterioration of the part of the lot.

The duty of the body corporate is to maintain common property, and keep the same in a structurally sound condition (see section 109(1)). If however the item or part requiring protection is not common property, but is part of a lot, then the body corporate has a far more limited responsibility. In particular, section 109(2)(b) provides that the body corporate is responsible to maintain the following elements of scheme land that are not common property in a structurally sound condition—
(i) foundation structures;
(ii) roofing or other covering structures providing protection;
(iii) essential supporting framework, including load-bearing walls.

The applicants allege that there has been settlement of the foundations. The view of this office however is that settlement of foundations is a fairly usually occurrence, and is not usually such as to render parts of a lot unsound structurally, as is the requirement for body corporate responsibility. Certainly there is no evidence before me to suggest that the lot is not structurally sound. Rather the evidence suggests that the settlement has caused some minor cracking and gaps to appear internally in the lot. Moreover, there is no suggestion that the essential supporting framework, including load-bearing walls, have become structurally unsound. In all the circumstances, the applicants would need to have established that the cracking etc was such as to render the lot structurally unsound. I am not satisfied that the body corporate is responsible to undertake the repairs sought by the applicants, and I therefore intend to dismiss this application.

I do not intend to comment on whether, given that it has contributed towards the repair of other lots in presumably similar circumstances, the body corporate should, notwithstanding the above finding, make a “contribution” in this instance. I consider this is a matter for the body corporate to determine.

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