Turramurra Court [2000] QBCCMCmr 509 (4 October 2000)

PJ HanlyREFERENCE: 0197-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12843
Name of Scheme:	Turramurra Court
Address of Scheme:	23 Parker Street MAROOCHYDORE QLD 4558

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

Marion Patricia BROOK, the owner of Lot 3



I hereby order that the application by Marion Patricia BROOK for an order that repairs money of $1497.88 plus all the interest be recovered from the body corporate, is dismissed.

I further order that within one (1) month of the date of this order, the body corporate must engage a suitably qualified person to inspect and report on:

1.	the condition of the common property roof over the carport of Lot 3;
2.	the condition of the lintel over the door to the lounge room of Lot 3;
3.	the condition of the lintel over the window of the bedroom on the southern side of Lot 3;

and

4.	the cause of water penetration into the bedroom on the southern side of Lot 3 and any consequential damage (if any) to Lot 3.

I further order that within one (1) month of the date of receipt of the report, the body corporate shall obtain quotations for the necessary repairs to the common property and to Lot 3 recommended in the report from the suitably qualified person and, upon receipt of the quotations, arrange for the necessary repairs to be carried out.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0197-2000

“Turramurra Court” CTS 12843

The applicant, Marion Patricia Brook, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

I want my repairs money which was $1497.88 plus all the interest the Abetta Body Corp as recovered on my money so I can get my car port roof fixed to stop the water soaking my beds and dressing table in back room.

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 she paid $1497.88 to repair the roof of the carport of Lot 3, from which water leaks into the back bedroom of her lot. Mrs Brook states that when she purchased Lot 3 she found that the body corporate was not being administered correctly and that lot owners did not want to be involved in a body corporate. Mrs Brook further states that Abetta Body Corporate Management was subsequently engaged as the Body Corporate Manager, and that it was found that no repairs had been done since the building was constructed. Mrs Brook contends that quotations for repairs to each of the units were obtained, and that in respect of Lot 3, the cost to repair the carport roof and lintels was $1497.88. Mrs Brook states that the relevant repairs have not been carried out. Mrs Brook has also made reference to exposed pipes attached to the ceiling of the back bedroom of Lot 3. She states that these pipes service Lot 4.

A copy of the application was forwarded to the secretary for distribution to all owners (excluding the applicant) and to all members of the committee. As there had not been any written responses received by the closing date for submissions, this office sought a submission from Mr Woods (a committee member). To date there has not been a submission received from Mr Woods or the body corporate committee.

“Turramurra Court” was established on 26 November 1976 when Building Units Plan 2287 was registered by the registrar of titles. With the commencement of the Act (13 July 1997), a building units plan is now referred to as a building format plan of subdivision.
2n
On Wednesday 28 September 2000, a delegate of an adjudicator inspected the body corporate books and records and visited the complex to view Lot 3. As a result of the inspection I have been provided with the following information.
At the Annual General Meeting dated 5 March 1992, the body corporate accepted quotations to effect the repairs listed in a “Notice to Repair” dated 23 January 1992 issued by the Maroochy Shire Council. Two quotations from CA & PA Foster (Builders) (Foster) for $3090.00, a quote from Colonial Improvements (Colonial) for $1870, and a quote from Perks Turf for $1500 were accepted. The body corporate fixed a special contribution to meet these liabilities. I have been provided with a copy of the quotations from Foster and Colonial but not the quote from Perks Turf. The quotes from Foster related in part to rust preventative treatment to steel lintels, and to certain water proofing work. The quote from Colonial concerned work to guttering.

Mrs Brook was present at the Annual General Meeting held on 5 March 1992. Based on the costs in the four accepted quotations and the lot entitlements for Lot 3, her special contribution was $1227.40. The General Ledger Report for the period 1 January 1990 to 31 December 1999 indicates that Mrs Brook paid $1100.40 on 29 May 1992. Due to the lack of specific information provided by the applicant, I have assumed that this payment is relevant to the order she is seeking in this application.

At the Annual General Meeting held on 15 June 1993, the body corporate resolved to approve invoices supplied by Foster totalling $3250. Foster had previously given the body corporate notification that there was a further cost of $160.00 incurred in performing additional work. The General Ledger Report for the period 1 January 1990 to 31 December 1999 indicates that Foster was paid $3250 on 29 June 1993. However, there is no evidence that the approved work by Colonial and Perks Turf was performed, although the reason for this is not apparent. I note that further work to the building, which had not been approved by the body corporate, had been organised, seemingly by Mr Foster of CA & PA Foster (Builders) who at the time was the owner of Lot 4. Kelly Green & Co. and SC & J Morgan carried out this additional work at a total cost of $1986.60.

The applicant has stated that quotations for repairs to each of the units were obtained, and that in respect of Lot 3, the cost to repair the carport roof and lintels was $1497.88. I have not been given any documentary evidence which supports this claim. I have read the quotations from Foster and Colonial, which do not make specific reference to Lot 3. Therefore, I cannot accept that at the Annual General Meeting dated 5 March 1992, the body corporate made a specific decision of the nature now being claimed by the applicant.

However, it is clear that all the work approved at the Annual General Meeting was not performed. I accept that the body corporate initially complied with its legislative obligation and made decisions regarding the maintenance of common property, and that lot owners paid the special levy contribution to have the necessary work completed. However, lot owners cannot expect their obligations to cease when the relevant payment is made.

Section 32 of the Act provides that the members of the body corporate are the owners of all lots in the scheme. The body corporate has a general duty to administer, manage and control the common property reasonably and for the benefit of lot owners. Normally, a body corporate would charge its committee with the responsibility of implementing its decisions. I have not been given any documentary evidence which indicates that the committee supervised the rectification work. It would seem that Mr Foster organised most of the work and authorised payments, and that there was acquiescence on the part of the other lot owners to this process. However, there is no evidence that the body corporate considered any formal process to ensure that the approved work was completed in a satisfactory manner. It is unreasonable for lot owners to expect that common property will be maintained without their involvement. The lot owners are the body corporate, and in the absence of any specific authorisation to another person, they are ultimately responsible to ensure that approved work is completed satisfactorily. If the work is not completed in accordance with the decisions made, a lot owner does not have a subsequent right to seek reimbursement of their contribution to meet the cost of the work. For these reasons, I have dismissed the applicant’s claim for reimbursement of $1497.88.

However, the applicant has a valid claim in respect of common property defects which presently affect Lot 3. Initially, she assumed that the work approved at the Annual General Meeting dated 5 March 1992 would rectify these problems. However, it is clear that the body corporate has not yet complied with its obligation to maintain common property in good condition. This is evidenced by the fact that at three successive annual general meetings from 1995 to 1997, decisions were made regarding the maintenance of the carport near Lot 3, the lintels over the lounge room door and the back bedroom of Lot 3, and the storm water drain near the front bedroom of Lot 3. On 19 March 1996, the body corporate paid Lawton Plumbing $1205.00 for (amongst other work) repairs to a carport roof and to paint lintels. The relevant invoice does not identify where this work was performed. Given that the concerns of Mrs Brook were again considered at the Annual General Meeting held on 10 March 1997, I have assumed that this work did not relate to the defects around Lot 3. Clearly, the body corporate has not complied with its obligations regarding common property. However, I am not satisfied as to the extent of the water penetration problem.

Therefore, I have ordered that the body corporate shall engage a suitably qualified person to inspect and report on the condition of the common property roof over the carport of Lot 3, the lintels over the door to the lounge room and the window of the back bedroom of Lot 3, and the consequential damage (if any) to Lot 3. The body corporate must then arrange to obtain quotations to carry out any work to common property and to Lot 3 which is recommended in the inspection report given by the qualified person. The cost of any work carried out on common property or in Lot 3 as a consequence of this order must obviously be met by the body corporate.

I note that the body corporate has previously made a decision in general meeting to consider the relocation of the storm water drain in front of Lot 3. While I am not prepared to make an order in respect of this matter, I would remind the body corporate of its obligation to implement its decisions. In addition, Mrs Brook has made reference to an exposed pipe in a bedroom of Lot 3. As the applicant has not given any information to support the removal of this pipe, I have not considered this matter.

I also note that there is only one person elected to the current committee. Section 7 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") provides that “There must be a committee for the body corporate for a community titles scheme”. Section 9(3) of the Standard Module provides that “The committee must consist of at least 3, but not more than 7, persons”. The Act and the Standard Module provides the procedures for the committee to make its decisions, and for owners to be advised of the decisions being made by the committee. Neither the Act nor the Standard Module empowers an individual committee member to carry out work on common property or to expend body corporate monies without the authority of either the committee or the body corporate in general meeting.

In an attempt to alert lot owners to the existing maintenance issues in this scheme, I have distributed a copy of this order to all lot owners. The body corporate members must make themselves aware of the provisions of the legislation. The Office of the Commissioner for Body Corporate and Community Management provides an information service which can be contacted on 1800 060 119 for assistance with questions on the legislation. There are also a number of brochures available from the Commissioner’s Office on various aspects of the legislation. Further, the body corporate should also consider obtaining a copy of the Act and the Standard Module. The legislation can be purchased from Goprint Ph:1800 679 778.