Netanya Noosa [2001] QBCCMCmr 211 (9 April 2001)

P J HANLYREFERENCE: 0061-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17658
Name of Scheme:	Netanya Noosa
Address of Scheme:	Hastings Street NOOSA HEADS QLD 4567

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

Kenra Pty Ltd as trustee, the owner of lot 51



I hereby order that, within 1 month of the date of this order, the body corporate shall reimburse the applicant, Kenra Pty Ltd the sum of $297.50, being 50% of the cost of the mobile stainless steel barbeque stand for lot 51.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0061-2001

“Netanya Noosa” CTS 17658

The applicant, Kenra Pty Ltd as trustee, the owner of lot 51, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order that the body corporate reimburse Kenra Pty Ltd for all costs associated with the reinstatement of the barbeque facility to lot 51 (being the sum of $595.00) within two weeks of the order being made.

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, in essence, that the body corporate dismantled the barbeque and bench within lot 51 as part of the works commissioned to replace the waterproof roofing membrane, and then failed to reinstate it.

The body corporate committee was invited to respond to the application. A submission was received from solicitors instructed to act on behalf of the body corporate. The essence of the submission was that the timber surround of the barbeque was full of dry rot, that self destructed upon removal. In addition, it was submitted that the barbeque could not be reinstated in its former position, as the method of fixing would penetrate the new waterproof roofing membrane. The body corporate’s submission is that, because of the poor state of the timber surround, the maintenance of which was the applicant’s responsibility, only a notional sum of $50.00 should be paid to the applicant by way of contribution to the new, mobile barbeque trolley.

Sections 120(2) and (3) of the Standard Module, by which this scheme is regulated, provide as follows:
ú

Obligations of owners and occupiers—Act, s 122

120.(1) ...

(2) The owner of a lot included in the scheme must maintain the lot in

good condition.

(3) The owner’s obligation under subsection (2) to maintain the lot in

good condition does not apply to a part of the lot the body corporate is

required under this regulation to maintain in good condition.

The body corporate has alleged that the timber surround of the barbeque was full of dry rot, which the applicant has denied. I have spoken with Mr Graham Lukins, the project manager, and with Mr John Cobb, the builder who completed the works, principally in connection with the pergola which was previously erected within the applicant’s lot (Application No 0688-2000). Neither of them has been able to provide me with a definitive statement as to the condition of the timber surround at the time that it was dismantled. Both of them however, confirmed that the barbeque could not be reinstated in its former position, because of the reconfiguration of certain block walls, and because one wall was replaced with an aluminium framed screen, to which nothing could be attached.

I have formed the view that, although the applicant is required to maintain the lot in good condition (section 120(2) supra), the body corporate is also required to ensure that the applicant is left with a barbeque facility at the completion of the works which replaced the roofing membrane. I am not persuaded, however, that the applicant should be reimbursed for the full cost of the mobile barbeque trolley. Firstly, the applicant is not entitled to be placed in a better position at the conclusion of the works than at the commencement of the works. It is common ground that the timber surround was not new; the steel trolley into which the barbeque has now been placed is new. Secondly, the applicant now has the benefit and flexibility of a mobile barbeque, whereas previously the barbeque was permanently fixed. I note that the applicant claims a degree of disadvantage because the previous barbeque facility had a large preparation area. There is no suggestion that there is insufficient room to place a table or some such other item, which could be used as a preparation bench. I am not persuaded by this argument to order the payment of the full cost of the stainless steel trolley.

I have therefore decided that the body corporate must reimburse the applicant for half of the cost of the stainless steel barbeque trolley. I have ordered accordingly.





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