Tarraleah III [2000] QBCCMCmr 594 (20 November 2000)

P J HANLYREFERENCE: 0422-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7576
Name of Scheme:	Tarraleah III
Address of Scheme:	119 Sugar Road MAROOCHYDORE QLD 4558

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

Patricia Caroline Howarth, the owner of lot 3



I hereby order that the owner of lot 3 shall properly maintain and keep in a state of good and serviceable repair the common property allocated to lot 3 by the exclusive use by-law 36, including the retaining wall constructed within the boundary of the exclusive use area of lot 3.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0422-2000

“Tarraleah III” CTS 7576

The applicant, Patricia Caroline Howarth, the owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

I am seeking clarification re who is responsible for the repair of the retaining wall.

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 has been advised by the body corporate manager that she is responsible for the retaining wall in her exclusive use area. The applicant notes that she is not able to put locks on the gates and the area is used as an access area. The applicant further states that she is looking for a resolution to the problem.

The body corporate committee was invited to respond to the application. A submission was received from the body corporate manager, on behalf of the body corporate. The body corporate manager notes that the area in question has been allocated to the applicant under the exclusive use by-law 36 passed by resolution without dissent on 20 February 1987. The body corporate manager further notes that the owner to whom the exclusive use allocation is made is responsible for the performance of the duty of the body corporate. The body corporate manager further states that the only time the applicant’s exclusive use area was used for access was during recent construction of a dividing fence and retaining wall on the southern side of the units. The body corporate manager further states that the body corporate gardener does not use the area for access.

The only by-laws recorded for this scheme are those recorded by the Registrar of Titles on 17 June 1987. Contained within those by-laws is by-law 36 allocating various areas of exclusive use to lot owners. I note from the photographs provided by the applicant that the retaining wall is constructed within the confines of the exclusive use area allocated to lot 3 by virtue of by-law 36.




Section 38(1)(b)(i) of the (previous) Building Units and Group Titles Act 1980 (BUGTA) provided as follows:

38 Duties of body corporate.
(1) A body corporate shall –

(a) ...

(b) properly maintain and keep in a state of good and serviceable repair –

(i)	the common property including where practicable the establishment and maintenance of suitable lawns and gardens thereon; and
(ii)	...

In these circumstances, the applicant is responsible for the duties of the body corporate to properly maintain and keep the retaining wall in a state of good and serviceable repair. I have ordered accordingly.2n