Anglers Court [2000] QBCCMCmr 379 (27 July 2000)

CG YoungREFERENCE: 0286-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21128
Name of Scheme:	Anglers Court
Address of Scheme:	5-11 Thompson Street VICTORIA POINT QLD 4165

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

Maud Elizabeth BUTLER, the owner of Lot 13,



CG YoungI hereby order that, within one (1) month of the date of this order, the body corporate must engage a pest control contractor to conduct an inspection of the common property for the purposes of determining whether there is termite2n activity on common property.

I further order that within two (2) weeks of the date of the pest control report, the body corporate must provide a copy of the pest control report to all lot owners.

I further order that, within two (2) months of the date of the pest control report, the body corporate must carry out any necessary work on common property identified in the pest control report.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0286-2000

“Anglers Court” CTS 13559

The applicant, Maud Elizabeth Butler of lot 13, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“The body corporate immediately engage a white ant pest controller to carry out a termite treatment on all common property at Anglers Court.”

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 supporting grounds, the applicant states that a guarantee for pest control treatment will only be given if all of the units forming a block of units are treated at the same time. She states that there are four units in the block which constitutes Lots 13 to 16. The owners of three of the four lots have agreed to have the block pest controlled. The fourth owner, Mr Hunt from Lot 16 has continually refused to have his lot treated.

A copy of the application was forwarded to the body corporate secretary for distribution to all owners. In her response, Mrs Dutton from Unit 2 states that termite activity was discovered in her lot earlier this year, and that she has had this problem effectively treated. Mrs Dutton states that the source of the infestation was restricted to her lot. The body corporate secretary, Ms Oliver has submitted that she advised all lot owners of the termite activity on Mrs Dutton’s lot and informed them that as a precaution they should have their lots inspected. Ms Oliver also provided two letters from Bob Gunn Pest Control dated 29 February 2000 and 21 March 2000. The letter dated 29 February 2000 states that termite technicians have inspected one unit and discovered major termite activity. The second letter provides general information in respect of termite activity and the services provided by this pest control company. Other than the fact that termites were discovered in one unit, neither letter refers to a wider termite inspection being conducted.

The application from Mrs Butler is one of two applications currently in this office which relate to termite activity in the “Anglers Court” community titles scheme. The other application (Ref. No. 266-2000) from Mr Best of Lot 17 seeks an order that the body corporate have termite treatment carried out on the common property and that owners and the body corporate agree on termite treatment of the slab on which the units are built. As both applications are seeking similar orders, I will deal with both applications at the same time.
The submissions from a number of lot owners have expressed dissatisfaction with the response from the body corporate committee regarding this matter. It is important in issues of this nature that the owners and the members of the body corporate committee are aware of their maintenance responsibilities. In addition, the body corporate must understand that it has an obligation to act reasonably and for the benefit of lot owners. It is also important to note that the members of the body corporate are the owners of all lots in the scheme. The committee, as the administrative arm of the body corporate, can make decisions in the name of the body corporate, though of course the body corporate in general meeting can, as the paramount body, overturn a committee decision. Obviously, decisions of the body corporate and its committee must be in accordance with the legislation.

“Anglers Court” was registered as a group tiles plan under the Building Units and Group Titles Act 1980. With the commencement of the current Act 2non 13 July 1997, a group titles plan is now taken to be a standard format plan of subdivision under the Land Title Act 1994. The scheme comprises 20 lots, each having a residential building with a common (or “party”) wall joining it and one or both neighbouring lot buildings.

A group title plan is a subdivision of land and therefore owners, although they are tenants in common of the scheme’s common property, have individual title to their lots as defined by the relevant boundaries shown on the scheme’s registered plan. That is, each owner owns the building on their lot, the land on which it is sited and the land lying between the external walls of the building and their lot boundary.

Section 109 of Body Corporate and Community Management (Standard Module) Regulation 1997 (which regulates “Anglers Court”) imposes on the body corporate the duty to maintain the common property in good condition. Section 120 of the Standard Module imposes on each owner a duty to maintain their lot in good condition

The responses to the application from lot owners and the body corporate committee contain statements relating to termite activity on common property and individual owners having their own units inspected, and various arguments regarding whether other owners or the body corporate should be taking action to prevent possible termite infestation. There is no evidence that the body corporate or a lot owner has engaged a qualified person to conduct a proper termite inspection of the scheme to determine the extent (if any) of termite activity.

The damage that can be caused by termite infestation can be quite serious, and unfortunately the extent of the damage may not always be evident until either a qualified person conducts an inspection or significant damage occurs. Further, the damage caused by termites and the extent of termite infestation in the Brisbane area has received widespread coverage in the media in recent times. Therefore, it would be reasonable for property owners to have concerns in relation to this issue, especially if there is evidence of termite activity in a neighbouring area.

The letter from Bob Gunn Pest Control dated 29 February 2000 does state that termites have been discovered in one unit. It would appear that this letter is referring to unit 2 owned by Mrs Dutton. In her response to the application, Mrs Dutton stated that the infestation was restricted to her lot. There is no other evidence indicating a wider source of the termite infestation.

The body corporate has an obligation to maintain common property in good condition. I consider that this obligation relates not only to rectifying an obvious defect in common property, but extends to performing work which may reasonably be expected to minimise the likelihood of future maintenance of common property. Given that at least one lot in the scheme has been affected by termite infestation, that there are a number of lot owners concerned about termite activity, and the fact that the body corporate have not obtained satisfactory conclusive evidence that termite activity is not prevalent within the complex, I have ordered that the body corporate engage a pest control contractor to conduct a termite inspection of the common property. The body corporate must also carry out any necessary work on the common property identified in the pest control report. I have also ordered that a copy of the pest control report be provided to each lot owner so that all owners have knowledge of the extent (if any) of termite activity on common property.

While the applicant has sought an order against the body corporate, the grounds to her application deal mainly with the unsuccessful attempts by her daughters when approaching Mr Hunt from Lot 16 to have his lot treated.

As I stated earlier, the owner of each lot in a standard format plan of subdivision owns the building on their lot, the land on which it is sited and the land lying between the external walls of the building and their lot boundary. The concrete slab forming part of the building is also part of each lot. The body corporate has a responsibility to maintain common property. The lot owner has a responsibility to maintain the lot. Therefore, the body corporate is responsible for pest prevention of common property, and each lot owner is responsible for the pest prevention of his or her lot. The belief that the body corporate has some over-arching responsibility because the possible problem lies in the “main building” is incorrect. Responsibility for repairs and maintenance follows ownership, except for certain items of utility infrastructure (ie electrical wiring, water pipes, etc) under section 21 of the Act.

The applicant has made reference to the block of units of which her unit is part of. She has stated that Mr Hunt refuses to have his unit treated, which could compromise any treatment work performed on the other units in this block. The applicant has not provided any evidence which indicates that Mr Hunt has breached his duty to maintain under section 120 of the Standard Module. Therefore, I am not willing to issue any order against Mr Hunt or any other lot owner.

However, lot owners should be aware of their maintenance obligations under section 120 of the Standard Module. If a lot owner fails to maintain their lot in good condition the body corporate can, in accordance with section 121 of the Standard Module carry out the maintenance work itself on the lot and then recover the cost from the owner.

Further, lot owners should be aware of section 227 of the Act which provides:

“(1) If the adjudicator is satisfied that the applicant for the order has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for

the contravention—

(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or

(b) to pay compensation of an amount fixed by the adjudicator.

Example—

A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition, the adjudicator could, on application of the lot’s owner, order the body corporate to have the damage repaired or to pay appropriate compensation.

(2) The order cannot be made if—

(a) for an order under subsection (1)(a)—the cost of carrying out the repairs is more than $75 000; or

(b) for an order made under subsection (1)(b)—the amount of the compensation is more than $10 000.”

Lastly, section 119 of the Standard Module provides a means for owners to enter into an arrangement with the body corporate whereby pest prevention is carried out under its auspices for participating owners. That is, the body corporate can arrange a pest control contractor to carry out pest prevention to the lot buildings of those owners who choose to have it done and recover the full cost from those owners. A vital component of this method is that there is no compulsion for owners to allow the body corporate to have pest prevention work performed on their lot.