Summer Fields South [2001] QBCCMCmr 149 (13 March 2001)

RA MeekREFERENCE: 0665-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20629
Name of Scheme:	Summer Fields South
Address of Scheme:	Edmund Rice Drive, SOUTHPORT QLD 4215

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

Michelle Lambart, the occupier of lot 85



RA MeekI hereby order that the application by Michelle Lambart, the occupier of lot 85, for an order that the Body corporate rectify and pay costs due to termite infestation to unit 85, Summerfields due to body corporate negligence, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0665-2000

“Summer Fields South” CTS 20629

The applicant Michelle Lambart, the occupier of lot 85, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Body corporate rectify and pay costs due to termite infestation to unit 85, Summerfields due to body corporate negligence.

Section 223(1) 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 –

As per attached “Independent Report” carried out on 8^th November 2000 – completed by Chris E Langley from LTD Services ... Body Corporate negligence to inform subterranean termite infestation to Summerfield Units.

The applicant then annexes a letter she wrote to the body corporate secretary. The applicant concludes that letter with –

I don’t think I should have to pay for damages etc as per report other units at Summerfields are affected – it is a body corporate matter.

The applicant then attaches the report by LTD Services dated 10 November 2000 (the report). The report is not “independent” in the sense that the applicant intends it. The report was commissioned by the applicant. I note the findings of the report particularly at pages 3 (the middle two paragraphs), 4 (top paragraph) and 4 and 5 “Conclusions”.

I take exception to certain of the findings of the writer of the report. The writer submits that “it is my understanding” on several occasions when referring to the alleged actions or lack of action on the part of the body corporate. In my view, the conduct of the body corporate in relation to this matter is not within the writer’s knowledge, even if the writer did speak to the on-site manager. Later the writer talks about the body corporate having a responsibility and a “Duty of Care”. Duty of care is a legal concept arising out of the law of negligence. It does not seem to me that the writer is qualified to determine whether a duty of care exists. On page 5, the writer concludes –

The body corporate should now commence treatment of unit 85.

With all due respect to the writer, I suggest that in future he limit his report to the aspect in question and its causation, and not then speculate on duties of care and responsibility of parties.

To the extent to which the writer does do this, I quote from the report –

The current subterranean termite infestation at unit 85, can be associated with an identified root crown termite colony of the same species, found to an old tree stump on westside common property and not more than 10 metres away. ...

Inspection at unit 85 shows no evidence of a termite colony originating from the unit and knowing the life cycle and habits of this species of subterranean termite, the colony attacking the block of units which include units 84, 85, 86 and 87 are at extreme risk from subterranean termite colonies located on common property grounds.

The body corporate common property is the source of the present subterranean termite infestation with the same species identified and termite activity has been traced from the entry point into the unit 85, back to the westside common area gardens, beyond the block retaining wall where the infested tree stumps are situated.

Interestingly though, the writer does acknowledge that in respect of the termite problem affecting unit 87, the owners of that unit undertook the necessary treatment work, not the body corporate.

The body corporate has denied that it has been negligent. The body corporate submits that the applicant’s material “in respect of the cause of damage, is partly inconclusive and partly inaccurate”. The body corporate submission is also critical of “certain assumptions” made by Mr Langley. The body corporate submits that –

... it has not been negligent (in the manner alleged) by reason of the fact that it has, on a number of occasions, provided advice (including written advice) to all residents of the Scheme in relation to termites.

Specifically, the body corporate submits that it “fulfilled its legal obligations, with respect to notification to residents by ...”

• April 2000 - minutes of a committee meeting displayed on notice board (containing advice in relation to treatment of termites);

• April 2000 – Manager’s report displayed on notice board(containing advice in relation to white ants);

• May 2000 – Copy of the chairperson’s report posted to all owners (containing advice in relation to white ants);

• July 2000 – Manager’s report on notice board (containing advice in relation to white ants).

The body corporate further states that the source of the “termites in lot 85 are likely to be from a nest under the concrete floor of lot 85”. The body corporate claims to have received expert advice to this effect. That advice simply states that there is a “good chance” that the nest is under the concrete floor of lot 85.

The body corporate then submits that the “applicant has caused or contributed to the termite infestation”. The applicant is aware of the body corporate’s allegations in this regard, and has replied to these.

The body corporate concludes that it has “fulfilled its duties in that it has, in a reasonable manner, administered the common property and has carried out its functions and duties under the Act and the Community Management Statement”. The body corporate concludes that under the standard module, the body corporate “is not required to maintain a lot (or any part of a lot), in the circumstances of this Scheme.

The circumstance to which the body corporate is presumably referring is that the plan of subdivision for this scheme was a group title plan (now a standard format plan). The fact of being a standard format plan is significant in determining responsibility. In contrast to a building format plan, which is the subdivision of a building, and where the body corporate retains significant maintenance responsibilities due to the existence of significant areas of common property, a standard format plan is the subdivision of land. As a subdivision of land, it is usually the case that only limited areas of common property are created by registration of the plan. These areas are normally gardens, common walkways and facilities (eg. pools etc). Common property in a standard format plan does not usually include parts of buildings containing lots.

Section 109 of the standard module provides for the body corporate’s duty to maintain common property. Section 109 relevantly provides -

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Duties of body corporate about common property—Act, s 114

109.(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

(2) To the extent that lots included in the scheme are created under a building format plan of subdivision, the body corporate must—

(a) maintain in good condition—

(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not common property in a structurally sound condition—

(i) foundation structures;

(ii) roofing or other covering structures providing protection;

(iii) essential supporting framework, including load-bearing walls.

The distinction to be drawn in section 109 is clear. In section 109(1), the body corporate is required to maintain common property. This applies to common property in every body corporate. Section 109(2) goes on to extend the responsibility of the body corporate to a number of very specific areas. However, section 109(2) is limited to schemes created under a building format plan of subdivision.

In the context of this body corporate, created under a standard format plan of subdivision, the responsibility of the body corporate under section 109 is limited to the maintenance of common property under section 109(1). In contrast to a building format plan, where the boundary of a lot with common property is usually the centre of the floor, wall or ceiling, in the case of a standard format plan, there is no such boundary line. Theoretically, the owner of a lot in a standard format plan, subject to the overriding law, owns to the centre of the earth under the lot, and to the heavens above.

In the case of vertical side boundaries of the lot, where the lot adjoins another lot, then the boundary is the centre of the dividing structure. However in the case of a boundary with common property, then the boundary of the lot is as specified on the plan, and in the case where a wall or other dividing structure is the boundary line, then the boundary is the exterior or external surface of that wall or other dividing structure.

In my view, the only limited area of potential body corporate liability which I foresee is if the body corporate has taken any action, or alternatively has failed to take action, which has resulted in a greater problem or damage being created to the affected lot, then would otherwise have been the case. For example, if the body corporate had caused excessive water to lie about the common property or other conditions such that termites were able to enter the applicant’s lot, or had failed to take reasonable precautions regarding termite activity on common property of which it had become aware. The mere existence of termites on common property does not establish body corporate responsibility for repairs to a lot. Termites are a pest and are relatively indiscriminate where they chose to nest. In my view, in the case of a standard format plan, it is only when a body corporate fails to take reasonable steps or precautions regarding termite activity occurring on common property, that it might subsequently be held responsible for damage occasioned to a lot in the scheme.

The applicant’s central allegation is that the body corporate has been negligent in failing to inform owners of the risk of “subterranean termite infestation to Summerfield units”. I have reviewed the material referred to in the “Chronology” contained in the body corporate submission. I intend to quote from part of the material referred to in that Chronology.

Some residents are concerned about white ants on their property. ... Management will again have the common area treated and we advise any concerned residents to have their unit checked by a reputable pest control company. Some suggestions ....

(Body Corporate Committee Newsletter of June 1999)

The committee resolved to keep 6 to 12 monthly treatments of the sleepers on common property. However it is individual owners who must take responsibility for their own units. The committee also resolved to advise all owners by way of newsletter, that there is possibly a termite infestation and all owners must take necessary precautions for their units.

(Committee minutes 28 July 1999)

The complex gardens have been inspected by two pest control firms and treatment to sleepers carried out. Further to these inspections white ants were discovered in the garden at the side of unit 87 and have been treated. Both pest control firms state that white ants may not be present in the garden when an inspection is carried out but could move into the area within weeks of the inspection.

(Managers’ Report April 2000)

I would like once again to bring to the attention of all owners that termites have been found in some units. The body corporate is responsible for treatment of the common area gardens, and arranges professional inspections on a six monthly basis and also the managers and gardeners have an ongoing inspection while working the gardens. Treatment is carried out when termites are discovered. I would like to advise all owners that they are responsible for their own unit. ...

(Chairman’s report May 2000)

As well as Ashmore being our favourite place to live, termites love it too. Keep a watch out for these hungry little posts who will munch through your house in no time once you let them in. Don’t over water, they love moisture and keep yourself educated on their habits.

(Newsletter November 2000)

Given the level of information and advice coming from the body corporate regarding termites and white ants in the last two years, I consider that the applicant’s claim of negligence on the part of the body corporate in failing to inform her as an owner of the potential of termite infestation cannot be substantiated. I consider that the body corporate has kept owners informed of the potential problem on a regular basis, and I can only conclude that it has been the applicant’s own failure to undertake prudent inspections that has resulted in the termite infestation of her lot.

In the circumstances, whilst I empathise with the applicant’s situation, the prevention of termite penetration to her lot is her own responsibility, and not that of the body corporate. Accordingly, I have dismissed the application.





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