Heritage Village Ormiston West [2000] QBCCMCmr 96 (23 February 2000)

C G YOUNGREFERENCE: 0067-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19720
Name of Scheme:	Heritage Village Ormiston West
Address of Scheme:	88 Freeth Street WEST ORMISTON QLD 4160

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

C G YOUNGI hereby order that the body corporate, through its committee, must as soon as possible obtain at least three (3) quotes from persons with the appropriate expertise, to carry out the following rectification work to the rear courtyard and courtyard structures of Lot 18 (Unit 79) –

(1) Demolish and remove all termite infested timber from the spa cradle and surrounding structure and carry out whatever pest treatment is necessary to reasonably secure both the lot building and other scheme buildings against termite infestation and damage.

(2) Prevent the collection of rainwater in the spa by providing an effective cover over it, disconnecting it and placing it upside down in the courtyard, or by some other reasonable means.

(3) Fill the subsided areas of the courtyard, including the necessary removal and replacement of pavers, so as to prevent any penetration of pooling rainwater through the adjacent wall of the building situated on Lot 19 (Unit 80).

(4) Destroy and remove the weeds from the courtyard by the application of a suitable weed poison, reasonable for the purpose and without causing any permanent damage to the soil.

I further order that the committee must select the most appropriate quote and engage the person to carry out the work at the soonest opportunity, at the initial cost of the body corporate. A copy of each of the quotes and the decision of the committee must be filed with this office.

I further order that the cost of the rectification work must be levied by notice against the owner of Lot 18 (Unit 79) under the authority of this order and which, if unpaid, is recoverable, with any accrued penalties, under the provisions of section 99 of the Body Corporate and Community Management (Standard Module) Regulation 1997 against the current owner John HIRST or any successor in title to the lot. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0067-2000

“Heritage Village Ormiston West” CMS 19720

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

This body corporate is seeking an Interim Order that would enable urgent work to be performed in the courtyard of Lot 18 (Unit 79)”

Section 225(1) of the Act 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)).

This is an application made by the committee in the name of the body corporate, authorised by its members as signatories to the application.

In the supporting grounds the applicant states that Lot 18 (hereafter “the lot”) has been vacant for some 9 months. The owner of adjacent Lot 19 has complained of the following: vines growing through the dividing fence; concern over water penetration resulting from pooling of rainwater; and, when the lot was occupied, noise from a spa pump motor set close to their adjacent bedroom wall.

The committee attempted to serve notice on the respondent owner, John Hirst, to remedy the gardening and water problems, and also regarding the installation of the spa without body corporate authorisation. Despite inquiries with a number of sources it has been unable to locate him. Mail merely accumulates in his letterbox. In the course of it inquiries it has ascertained that the respondent is being sought by Energex for unpaid accounts (the electricity has been disconnected), Telstra for an overdue account (telephone disconnected), and the Redland Shire Council over rates arrears. As well, the real estate agent who has in the past rented out the lot for the respondent, Pearson Bros. Real Estate, had been unable to contact him some months ago to close a sale of the lot.

As an emergency measure to determine the extent of the water problem and to determine the extent of the health problem caused by stagnant water in the unused spa, the chairperson entered the backyard of the lot and found –

•	There had been considerable subsidence in the courtyard pavers where a pipe had seemingly been laid connecting the pump motor to the spa bath.
•	The spa contained stagnant water.
•	The courtyard area was overgrown with grass and vines, including the noxious weed groundsel.

The chairperson also found that termites had infested the wood surrounds of the spa.

In order to confirm the extent of the problem raised in the application, on Monday 21 February 2000 I visited the scheme and accompanied the body corporate treasurer, Mr Roy Cumming, in an inspection of the lot courtyard. The problems were visually evident by viewing from the adjacent common property area.

The abandonment of the property for none months has created an emergency situation for the scheme occupiers generally and the owner of Lot 19 in particular. The subsidence of the ground along the path of an underground pipe installation between the pump motor and the spa, will undoubtedly cause rainwater to pond alongside the western common wall of Lot 19 where the pipe is situated. Because there is a difference of around a metre in the levels of Lots 18 and 19, the pooling and subsequent seepage of rainwater will most likely result in a build up of water against the bedroom wall of Lot 19. Depending on the quality of the membrane applied to the wall by the builder, if any, and its state of preservation, the build up could have a damaging effect on the common wall. Excavation would establish whether this problem already exists however the immediate need is for the cause, the subsidence, to be rectified.

The spa contains stagnant water that either contains, or will inevitably contain, mosquito larvae.

The infestation of the wooden spa cradle by termites is extensive and needs immediate attention.

I have contacted the respondent’s property agent, Kay Pearson of Pearson Bros. Real Estate, who confirmed that she has endeavoured to contact the respondent at his former place of employment in PapuaNewGuinea but has been told that no one knows his whereabouts. She confirmed that a sale of the lot had been lost through her being unable to contact the respondent.

In my opinion there are urgent circumstances that warrant an interim order for work to be carried out to the lot to both remedy the present problems and prevent probable future damage to adjacent Lot 19. It is unknown whether the respondent will return to occupy the lot, or make contact in some way, and therefore my order must countenance the present situation of his absence continuing. I am mindful that the work will be carried out without the authority or knowledge of the respondent, by tradespersons not of his choosing, and, eventually, at his cost. To ensure fairness in these circumstances, I have visited and confirmed the state of the lot and the work necessary to secure the property and health of residents in the scheme. Under the order, the committee is required to obtain at least three quotes for the work and to use its best judgement in choosing the most appropriate tenderer. The quotes, of course, may variously be for the whole of the work or part of the work.

I will also require the committee to later provide me with a copy of the tenders and a copy of the minuted decision (whether resolved in meeting or by flying minute) selecting the tenderer. I will then issue an appropriate final order in the matter. A copy of this interim order has been posted directly to the respondent at his lot address and a response invited. It is not expected that he will receive this advice, however if in the future the committee becomes aware of his whereabouts then it should forward a copy of this interim order, and any final order, to him.

All parties should note the provisions of section 225(2) of the Act which provides that -
An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2n