Oasis [2001] QBCCMCmr 139 (7 March 2001)

P J HANLYREFERENCE: 0689-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Marala Avenue RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Oasis CTS 20870

I hereby order that Thandwalla Holdings Pty Ltd, the caretaker and manager of the scheme, shall within 1 month of the date of this order pay the sum of $550.00 to the body corporate by way of reimbursement for the cost of pruning the Cocos palm trees.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0689-2000

“Oasis” CTS 20870

The applicant, the Body Corporate for Oasis, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The order sought by the body corporate is to have Thandwalla Holdings Pty Ltd meet the costs of pruning Cocos Palms throughout the complex totalling $550.00 as invoiced by Beattie Investments Pty Ltd on 6 September 2000.

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 the body corporate has entered into a service and maintenance agreement with Thandwalla Holdings Pty Ltd (Thandwalla) under which Thandwalla is to perform or procure the performance of all caretaking and maintenance tasks and duties in and about the scheme. The applicant further states that in spite of requests to do so, Thandwalla refused to prune the Cocos palms, and an independent contractor subsequently carried out the work. The applicant contends that Thandwalla is liable for the cost of the pruning.

Thandwalla was invited to respond to the application. In her response, Mrs Val Parker, the secretary and a director of Thandwalla, stated that the body corporate had been advised that the cutting of fronds from the Cocos palms was too dangerous. Mrs Parker further stated that on 16 May 2000 the committee had advised Thandwalla that the body corporate would be responsible for hiring any necessary equipment.

I note that the service and maintenance agreement dated 17 November 1988 requires the manager to, amongst other things, “ensure that the lawns, gardens and shrubs in the said complex and the adjacent footpath are regularly watered and maintained at a high standard.” I further note that on 22 August 2000, the body corporate manager placed Thandwalla on notice that the body corporate proposed to engage a contractor and seek payment of the contractor’s costs from Thandwalla if the palm fronds were not cut down and removed within 7 days. Thandwalla took no action.

I have also been provided with a copy of a letter dated 16 May 2000 from the body corporate manager to Thandwalla in which it was noted that the Cocos palms required pruning. The body corporate manager confirmed that Thandwalla was responsible for the associated labour costs, and the body corporate was responsible for the cost of hiring any necessary equipment.

In a letter dated 9 October 2000 from Thandwalla to the body corporate manager, Mrs Parker protests that the policy of obtaining two quotes for amounts over $300.00 was ignored; that the sum charged for the pruning was excessive; and that the body corporate had proceeded with the pruning even though it had agreed to meet with the on-site manager upon his return from holidays. In addition, Mrs Parker states “(w)e have always maintained when the palms are unable to be pruned satisfactorily with the equipment provided by the body corporate it becomes the body corporate’s responsibility to have them pruned by a specialist contractor.”

I am satisfied that the pruning of the Cocos palms was an item of maintenance required to be carried out by the manager under the service and maintenance agreement. I am further satisfied that the body corporate had indicated its willingness to pay for the cost of any necessary equipment hire in its letter dated 16 May 2000 (although I have been informed by the body corporate manager on 7 March 2001 that the work was carried out by Beattie Investments Pty Ltd using existing body corporate equipment). I am further satisfied that Thandwalla had ignored repeated requests to prune the Cocos palms, even after being advised on 22 August 2000 that the body corporate would arrange to have the work carried out and then charge Thandwalla if Thandwalla did not do the pruning within 7 days. I am further satisfied that the committee was not required to obtain a second quote in relation to the pruning work, as the cost was well within the limit for committee spending ($7,600.00).

I have ordered that Thandwalla shall, within 1 month of the date of this order, pay the sum of $550.00 to the body corporate by way of reimbursement of the costs paid by the body corporate to Beattie Investments Pty Ltd for the pruning of the Cocos palms.

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