Temamere Gardens [2001] QBCCMCmr 229 (24 April 2001)

C G YOUNGREFERENCE: 0738-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19441
Name of Scheme:	Temamere Gardens
Address of Scheme:	15 Ann Street KALLANGUR QLD 4503

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

C G YOUNGI hereby order that within two (2) months of the date of this order the owner of Lot 1, Julie Pascoe, must paint all of the previously painted areas of the buildings and structures on her lot (except for “colourbond” metal material), including the external doors, eaves and pergola, to a reasonable standard of workmanship, and in the current colours or as otherwise agreed with the body corporate.

I further order that if the work is not carried out in the required time or is carried out but does not meet the conditions set out above, then the body corporate may carry out the work itself to the required standard by engaging a tradesperson painter, and committee representatives and the person or persons engaged in connection with the painting work may enter upon Lot 1 at such times as are necessary to carry out the work, after written notice to the owner given at least seven (7) days before the commencement of the work but without need of any further notice until the work is completed; and the full cost of the painting, including all reasonable administration expenses incurred by the body corporate, must be paid by the owner, Julie Pascoe, to the body corporate and if unpaid within a reasonable time of being given written notice of the amount, being not less than two (2) weeks after giving the notice, may be recovered from her as a debt owing to the body corporate.2y
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0738-2000

“Temamere Gardens” CTS 19441

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

The repainting of external paintwork at Unit 1/15 Ann Street, Kallangur 4503, by the owner.

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 at the general meeting of the body corporate held on 28 May 2000, members agreed to paint their lot buildings every five years commencing in the (then) present year of 2000. A copy of the minutes of that meeting was supplied with the application and it shows a motion to this effect, seconded by the respondent Julie Pascoe, with the painting stated to be completed by 30 June 2000.

Although no written response to the application was received from Pascoe, a telephone call from her was received at this office informing that the painting had since been done. An office telephone call to Robyn Thompson, the body corporate secretary, was made to confirm that this was so, in which case the dispute application would not have been proceeded with. However, Thompson said that the respondent Pascoe had only painted a small area of the front entrance and therefore the application should continue.

To better resolve the dispute, particularly since there was no written response from Pascoe, as the adjudicator in the matter I contacted both Pascoe and Thompson to arrange a three-way teleconference. After some initial reluctance Pascoe agreed, however sometime later her daughter, Melissa Pascoe, telephoned saying that the body corporate had often been unreasonable with her mother and she felt she would be stressed if she took part in the teleconference; it was agreed that if her mother was agreeable that she would act as agent for her mother in the teleconference, though she warned that her mother had little money to meet commitments. Thompson agreed to the teleconference.

A teleconference was arranged for 9am on Wednesday 18 April 2000 but at the appointed time only an answering machine was available when the Pascoe’s number was called. A message was left but when no response was received within a reasonable period Thompson was advised that the teleconference would not proceed. Neither Julie nor Melissa Pascoe have responded to the answering machine request or otherwise made any contact.

Both the decision not to provide a written response to the application and not to continue with participation in a teleconference, leaves the respondent open to a decision being made against her in default of her not submitting a defence to the application. I have made an order against the respondent Pascoe, though not merely a default one and I have satisfied myself as to correctness of the facts from both the evidence provided by the minutes of the May meeting referred to earlier, and the comments of the respondent in the initial telephone call that she had not painted anywhere other than the front area. She further said that her family members would be able to carry out the necessary painting if necessary. She said that she had been badgered by the body corporate and was not happy with the representatives she had contact with in the past.

The law in respect of maintenance (which includes painting) by an owner of their community titles scheme lot is as follows.

“Temamere Gardens” was registered as a group tiles plan (now termed a “standard format plan”) on 15 October 1993. The essential difference in ownership between a lot in a group title plan and a lot in a building format plan, the other form of community title scheme, is that the land comprising the lot (and of course the buildings on the land) is owned wholly by the lot owner. The lot owner also shares ownership of the common property as a tenant in common with the other owners in the scheme.

However, ownership within a scheme brings communal responsibilities and owners are subject to both the legislation and the body corporate by-laws. The legislation, at section 122 of the Act and section 120 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”), provides that “the owner of a lot included in the scheme must maintain the lot in good condition.”

At the meeting of owners on 28 May, those present were in agreement that the lots were in need of painting and that each owner should complete this maintenance task by 30 June of that year, 2000. The respondent was an active participant in that view and decision and cannot now resile from that position by either claiming that the repainting is not necessary or that she hasn’t the funds to undertake the work. Ownership of a lot in a community titles scheme creates mutual obligations amongst owners in a number of areas, not the least being a common obligation to observe a proper standard of care and maintenance of their respective lots so as not to impair the overall appearance of the scheme buildings. That is, the use and enjoyment of lots and the common property by owners, and the value of their lots, should not be reduced by the tardiness or failure of one or more of them to discharge their duty of care and maintenance in respect of their lot.

The legislation recognizes the importance of this uniformity of maintenance and appearance by giving the body corporate a specific power to exercise when an owner defaults, to enter onto a lot and carry out the work itself and to then bill the owner for the cost involved. This is set out in section 121 of the Standard Module which states –

ú

Body corporate may carry out work required of owners and

occupiers—Act, s 123

121.(1) This section applies if the owner or occupier of a lot included in

the scheme does not carry out work that the owner or occupier has an

obligation to carry out under—

(a) a provision of the Act or this regulation, including a provision

requiring an owner or occupier to maintain a lot included in the

scheme; or

(b) a notice given under another Act or a Commonwealth Act; or

(c) the community management statement, including the by-laws; or

(d)	an adjudicator’s order; or

(e) the order of a court.

(2) The body corporate may carry out the work, and may recover the reasonable cost of carrying out work from the owner of the lot as a debt.

(my underlining)

Section 125 of the Act then sets out the powers of the body corporate to enter upon a lot, including, “to carry out work it is authorised or required to carry out”, which would include the default work authorised by section 121 of the Standard Module referred to above.

In the order I have spelt out the right of the body corporate to act, its power of entry and its right of recovery against the respondent, including any reasonable administration costs incurred by the body corporate. The body corporate may recover the amount against the respondent in the Courts if it is not paid in the time allowed. I understand that the respondent has an outstanding contribution which the body corporate intends recovering in the Small Debts Court.

I would suggest to the respondent Pascoe that she acts quickly in complying with the terms of this order if she wishes to avoid the additional administrative costs and inconvenience should the body corporate have to carry out the work.

The areas that require painting are those areas already painted, including the front gable, the eaves, all of the external doors and the pergola.2n