Waverley Court [2000] QBCCMCmr 388 (31 July 2000)

RA MeekREFERENCE: 0401-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11064
Name of Scheme:	Waverley Court
Address of Scheme:	130 Musgrave Street COOLANGATTA QLD 4225

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

Maureen Patricia O'Brien, the owner of lot 6


RA MeekI hereby order that the application by Maureen Patricia O'Brien, the owner of lot 6, for an interim and final orders that work currently being carried out at the above address, will not proceed further, unless verification is received that all work will be done to engineer’s specifications, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0401-2000

“Waverley Court” CMS 11064

The applicant Maureen Patricia O'Brien, the owner of lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I request an interim order, so that work currently being carried out at the above address, will not proceed further, unless verification is received that all work will be done to engineer’s specifications.

The Applicant has also sought the following interim order of an adjudicator, quote -

An interim order is required to put an event on hold (work being carried out) until all works meet with engineers specifications.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. 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 she is concerned that work commenced by the body corporate “on unit 1 will not be carried out in accordance with the Engineer’s Specification”. The applicant states –

“They” the body corporate have indicated that they will not put tiles on the balcony, they have not produced any specifications as to how they are to be laid and fixed and this is not what the Engineer’s report has specified. ...

At the body corporate meetings, after numerous attempts, I have not received either written or verbal verifications that all works on the building are being done to the Engineer’s Specifications.

I request that written verification that work is being carried out in accordance with Engineer’s Specifications be issued by body corporate.

If correct drainage is not installed and work carried as quickly as possible the structure of the building is in jeopardy. ...

Prior to the making of the interim order, this office sought a submission in respect of the application from the committee. I am in receipt of a submission in response to the application from the chairperson, D Steele. The chairperson states in part –

To my knowledge there is not a current and never has been any Engineers Specifications provided to repair or upgrade Waverley Court.

The chairperson then denies that the written correspondence received from John Desmond Heiner was commissioned by the body corporate, nor that there was a structural problem with the building raised over any seepage matter.

The chairperson then states –

In both instances (the seepage and the decks) there are no Engineers Specifications and none are warranted as the works proposed are precautionary maintenance to a building that is over 20 years old.

At the recent body corporate AGM the minutes reveal that for each vote the decision for each motion dealing with the maintenance was carried 5 to 1 with one abstention (being Ms M O’Brien) ...

The immediate concern is that if the works to the balcony are halted, further water penetration and spalling to the building will accelerate given that repairs as per the quote from Wetfix have commenced and the offending steel is currently exposed. ...

Finally there is no intention to embark on a “quick fix” as Ms O’Brien suggests. The very fact that a special levy has been invoked ... to deal with the drainage issue contradicts the “quick fix” allegation.

I note that the report provided by John Desmond Heiner was provided “at the request of Maureen O’Brien”. Moreover, another report provided by Ian Hill & Associates is addressed to “ Mrs O’Brien and Mrs Jones”.

I consider that neither report has been commissioned by the body corporate in respect of proposed maintenance. Moreover, even it a report had been commissioned by the body corporate, the body corporate is under no obligation to attend to maintenance or repairs in accordance with any guidelines or specifications contained in a report. The duty of the body corporate is to maintain the common property in good condition, and to the extent that the common property is structural in nature, in a structurally sound condition (see section 109 Standard Module). The applicant has not established to me that the common property is not being so maintained.

I am satisfied that at the meeting held on Wednesday 14 June, 2000, the body corporate resolved by 5 votes in favour, nil against, and 1 abstention to effect certain repairs or maintenance to the common property. There are a total of six lots in the scheme. Clearly the majority (all owners excepting the applicant) are satisfied that the repairs resolved to be undertaken are sufficient to satisfy the requirement for the body corporate to maintain the common property. Moreover, whilst I note that certain motions proposed were amended at the meeting, I further note that there were sufficient persons present at the meeting to authorise the passing of the motions even in an amended form.

It appears from the final statement in the applicant’s grounds that the applicant seeks a greater level of expenditure to resolve all problems immediately. It is improper of the applicant to suggest that owners should be required to accept a more expensive and immediate solution, as “all owners have two (2) homes (and) the levy they propose they could borrow and do both jobs at once and save in the long run”. The very reason body corporate’s have meetings etc is to resolve, usually by majority determination, how and when to undertake required maintenance. Moreover, a body corporate is entitled to prioritise its maintenance obligations. I suggest that the applicant is seeking, by this order, to compel the body corporate to accept her proposed solution to the situation. I decline to do so. This body corporate has expressed a clear view of how it proposes to undertake required maintenance, and moreover, is looking to future maintenance of the building in raising the amount in the sinking fund by a special levy. Rather than being prevented, this body corporate really should be encouraged in its endeavours. This application is dismissed.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.