Ebb Tide [2001] QBCCMCmr 256 (16 May 2001)

P J HANLYREFERENCE: 0090-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14632
Name of Scheme:	Ebb Tide
Address of Scheme:	204 Marine Parade Rainbow Bay COOLANGATTA QLD 4225

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

Helen Kay Wise, the owner of lot 3



I hereby order that the body corporate shall within 1 month of the date of this order undertake necessary repairs to the building in respect of spalling concrete as outlined in a report dated 20 January 2001 by Jeffrey Hills & Associates Pty Ltd.

I further order that the owners of lot 1 are liable to pay their proportion of the cost of high pressure cleaning and flood sealing of the top side of the carpark slab detailed in a report dated 20 January 2001 by Jeffrey Hills & Associates Pty Ltd, as this is a body corporate expense under section 109(2)(b)(ii) and (iii) of the Standard Module.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0090-2001

“Ebb Tide” CTS 14632

The applicant, Helen Kay Wise, the owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate undertake to have these repairs done by a qualified firm eg. Jeffrey Hill and Associates Pty Ltd and owners of each lot pay their fair contribution.

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 two of the three garage spaces in the scheme have advanced concrete spalling. The applicant further states that although the garage space of lot 1 does not presently appear to be affected, an engineer has advised that remedial work needs to be undertaken as soon as possible. The applicant further states that as the owner of lot 1 is unwilling to contribute to the work, it has been necessary to bring this application.

The owners of lot 1 were invited to respond to the application. In a letter dated 5 March 2001, the owners stated, in part, “we decided that it would be in the best interests if we went ahead and had the repair work done as soon as possible as it is only deteriorating further and costs will increase.”
However, the owners stated that they were not prepared to agree to the high pressure clean and flood seal of the top side of the car park slab, as only the owner of lot 3 has access to that area.

The Standard Module regulates this scheme. Sections 109(1) and 109(2)(b) of the Standard Module provide as follows:
ú

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) ...

(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 report dated 20 January 2001 from Jeffrey Hills & Associates Pty Ltd confirms that the concrete spalling is affecting the structural integrity of the concrete slabs within the building, and further confirms that the consequence of ignoring spalling concrete can result in continual deterioration of the building and a much accelerated cost of repair being involved when repairs are eventually undertaken. On this basis it is clear that the necessary repairs fall within the parameters of those items for which the body corporate is responsible.

The owners of lot 1 have stated that they do not consider they should be liable for the cost of high pressure cleaning and flood sealing of the top side of the carpark slab, because only the owner of lot 3 has access to this area. In fact, this area is also part of the body corporate responsibility, even though it forms part of lot 3’s title, as the sealing will, on the engineer’s report, eliminate water penetration, which reduces the occurrence of concrete spalling, which would otherwise interfere with the structural integrity of the building (see section 109(2)(b)(ii) and (iii) of the Standard Module). Accordingly, the owners of lot 1 are also required to contribute to the cost for this aspect of the work recommended by the engineer. I note that the contribution schedule lot entitlement for the lots is as follows:

Lot 1 -3
Lot 2 -2
Lot 3 -2

Although the total cost of the work recommended by the engineer exceeds the level of major spending for this scheme ($600.00), and usually two quotes would be required to be incorporated into separate motions for the consideration of the owners in general meeting (see section 104 of the Standard Module) I do not propose to make an order in that regard on this occasion, as the owners have obviously agreed to the work as quoted, with the exception of the top slab, which I have clarified above.

If there is insufficient money available in the body corporate accounts, and a special levy contribution is required (see section 95(2) of the Standard Module) the amounts which each of the lot owners must contribute to the cost of the concrete spalling rectification work must be paid in proportion to the respective contribution schedule lot entitlements (see section 95(5) of the Standard Module).

I note that the owners of lot 1 have indicated that they would like a ruling on other matters within the scheme, and have issued an invitation to this office to attend at the scheme and speak with them about those matters. This office does not have the resources to offer such a service. If the owners of lot 1 have a dispute with the other owners, they may lodge an application to resolve that dispute, and then the matter will be investigated. However, this office does offer an information service, which the owners of lot 1 may find useful. The information service can be accessed on Freecall 1800 060 119.2n