Oleander Court [2001] QBCCMCmr 204 (5 April 2001)

RA MeekREFERENCE: 0055-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11045
Name of Scheme:	Oleander Court
Address of Scheme:	8 Aquila Court MERMAID WATERS QLD 4218

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

Pat Noakes, the owner of lot 1


RA MeekI hereby order that the order sought by Pat Noakes, the owner of lot 1, that

1. To issue an order instructing Mr Ken Usmar, Unit 6 to stop using a concrete grinder or any other implement to alter the structure of the steps leading up to units 4, 5, 6 at Oleander Court.

2. To issue a further order instructing the committee to have a qualified trades person repair and paint the bottom step heading up to units 5 and 6 (&) to have the Gold Coast City Council or a registered engineer inspect the step to make sure it complies to current safety regulations,

is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0055-2001

“Oleander Court” CTS 11045

The applicant Pat Noakes, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

3. To issue an order instructing Mr Ken Usmar, Unit 6 to stop using a concrete grinder or any other implement to alter the structure of the steps leading up to units 4, 5, 6 at Oleander Court.

4. To issue a further order instructing the committee to have a qualified trades person repair and paint the bottom step heading up to units 5 and 6 ... (&) to have the Gold Coast City Council or a registered engineer inspect the step to make sure it complies to current safety regulations. ...

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)).

I don’t intend to restate the applicant’s grounds, nor the submission of the respondent’s, Ken Usmac, the husband of the owner of lot 6, but rather to merely state my findings, having considered the material of both parties before me.

I consider there is some independent evidence to indicate that the stairs had been painted with an incorrect paint, and therefore did require repainting. The letter from the CHU Loss Adjustor to the body corporate manager states in part that –

Our loss adjustor states that these stairs have been painted in a gloss paint which we believe to be oil-based. ... The area of concern relates to wet weather, virtually all the treads are constructed to allow water to pool on the treads either as a result of pool construction or possibly as a result of blistered paint being scrapped off prior to the painting process and the old paint, which still has good adhesion, left in place. Nevertheless, water does pool and when the stairs are wet, particularly if one is wearing shoes or smooth soled shoes, it is extremely slippery.

I am aware that the inspection of the insurance loss adjustor did come about as a consequence of the respondent’s call to their office. Nevertheless, the statements are an independent verification of the nature of the problem, and further, the information provided by the respondent in response to the application.

I intend to dismiss the application. The first order sought is that the respondent be ordered to stop using a concrete grinder or other implement to alter the structure of the steps. I am aware of the type of equipment (ie. an angle grinder) the respondent was using on the stairs. Seriously, the respondent could not alter the structure of the concrete staircase with this equipment if he was there for a year. I accept that all the respondent was doing was sanding back a minimum number of the stair pads so as to allow the escape of water, and to prevent further ponding of water on the stairs. I do not consider there to be any detriment to common property in this.

The second order is twofold. To have a qualified tradesperson repair and paint the step, and then have the council or an engineer inspect to ensure the step is safe or whatever. I understand the steps have now been repainted. To have this attended to again at further expense to the body corporate, and then to have it inspected to ensure compliance, is absurd. I refuse to order in terms as sought by the applicant.






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