Ballymore Gardens [2000] QBCCMCmr 340 (11 July 2000)

RA MeekREFERENCE: 0188-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23142
Name of Scheme:	Ballymore Gardens
Address of Scheme:	11 Glin Avenue NEWMARKET QLD 4051

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

Kai Cheong Chan, the owner of lot 5



RA MeekI hereby order that the application by Kai Cheong Chan, the owner of lot 5, for an order that requests the body corporate to pay a tradesperson or builder to inspect the termite damage and to determine if the damage is structural or cosmetic, and further, for the body corporate to repair the damage if it is structural, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0188-2000

“Ballymore Gardens” CTS 23142

The applicant Kai Cheong Chan, the owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

To request the body corporate to pay a tradesperson or builder to inspect the termite damage and to determine if the damage is structural or cosmetic. If structural, a further request for the body corporate to repair the damage. If cosmetic, the repair will be borne by myself.

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)).

In the supporting grounds, the applicant states that –

As per attached order no. 460-97 the commissioner has previously ordered that the committee ... be authorised to spend funds up to a limit of $6400 to undertake termite fumigation of all buildings and common property. It now appears that some of the structure within lot 5 has been affected by the termites and may require replacement. The cost is not yet ascertained but it may be high as the damage has been sustained to a supporting beam. A determination is required as to whether the owner or the body corporate is responsible to bear the cost of the repair of the structural damage caused by the termite infestation.

The body corporate committee have responded to the application by way of submission. The committee has responded in the following terms –

The body corporate committee has no dispute with the claimant Mr KC Chan and has no objection to the Commissioner resolving the claim made. ...

... Since that time (January 1998) we have had regular inspections of the whole estate by Ezi Pest Control including all units garden areas and common property.

Mr Chan has been diligent in adhering to all advice given by the pest control inspection team. However, since the treatment carried out in January 1998, no less than nine separate instances of termite infestations have occurred in his property.

The applicant seeks that the body corporate engage a tradesman to inspect termite damage to his lot, and if the damage is structural, to have the body corporate engage tradesmen to repair the damage.

I consider that the applicant has perhaps misunderstood to some extent my original order. That order (0460-1997) authorised the body corporate committee to expend funds on the carrying out of termite fumigation. The order referred to all buildings and the common property. That order did not determine that it was the responsibility of the body corporate to monitor termite infestation of lots, nor the repair of those lots.

In hindsight, it was perhaps remiss of me to extend the terms of the order to “all building”, rather than just the common property, since in a group title plan (now a standard format plan) as here, the body corporate is not responsible for maintenance of buildings upon lots. A standard format plan is a subdivision of land (not the subdivision of a building) and consequently it is the responsibility of the owner of each lot to maintain that building (or lot) including to take preventative action against termite infestation and, in the event of infestation, to repair damage which might have been occasioned.

However, in respect of the original order, I consider that the terms of the order extended to all buildings and therefore, no injustice was done, as all owners would have received the benefit of the fumigation, both to their lots and common property.

However in the current application, I conclude that the body corporate is not responsible for either the inspection of the applicant’s lot by a tradesperson, nor the repair thereof, if such is required. This is the responsibility of the owner of the lot. I have therefore dismissed the application.

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