Talbot Manor [2001] QBCCMCmr 26 (18 January 2001)

RA MeekREFERENCE: 0579-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8610
Name of Scheme:	Talbot Manor
Address of Scheme:	18 Albert Street EAGLEBY QLD 4207

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

James Alfred Glenn, the owner of lot 12



RA MeekI hereby order that within three (3) months of the date of this order, at its expense, the body corporate of Talbot Manor shall -

a) obtain a minimum of two quotations for the repair of termite damage to lot 12, owned by James Alfred Glenn;

b) present such quotations in the form of alternative motions to a general meeting of the body corporate, so as to choose a contractor to undertake the required repairs (Note – the body corporate must select a contractor to undertake the required repairs);

c) engage the successful contractor to undertake and complete the repairs necessary to reinstate lot 12 to its former condition and state of repair.

I further order that the body corporate shall ensure that the repairs are undertaken in an professional manner, using proper materials.

I further order that the owner of lot 12, James Alfred Glenn, shall allow access by the body corporate, its servants, agents or tradespersons, to affected parts of his lot at all reasonable times, so as to allow the body corporate to comply with the terms of this order.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0579-2000

“Talbot Manor” CTS 8610

The applicant James Alfred Glenn, the owner of lot 12, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We are seeking to recover costs from Talbot Manor Body Corporate for the following:

a)	Cost of installation of termite barrier to unit 12, Talbot Manor $275.00
b)	Inspection fees debited on account of this unit to the sinking fund $ 45.00
c)	Cost of rectification of termite damage, framework and other support areas with reference to unit 12 1850.00
d)	Cost of Visual termite inspection and termite monitoring program $ 70.00

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 following the discovery of an termite infestation in unit 16, the applicant discovered termites in the inner wall cavity of his unit. He states –

He contracted a professional termite treatment control service (Michael’s Pest Control) for inspection, and treatment, and discussed the matter with both the chairman ... and Complete Body Corporate Management who reiterated that there were insufficient funds for a termite barrier.

Subsequently (the applicant) contracted Michael’s Pest Control to install a barrier ... . Several months later the body corporate installed a termite barrier around the remainder of the complex. A request was made of Complete Body Corporate to cover the cost associated with the construction of the barrier around unit 12 and to repair damage. This claim was forwarded to R&T pest control by CBC ... but was rejected by R&T pest control as the body corporate had failed to install termite barriers when advised.

The body corporate has disputed the applicant’s claim that it has not properly maintained the common property. The body corporate claims that there was no evidence of any report stating that termite barriers had to be installed. Moreover, the body corporate states that as then secretary of the body corporate, it was the obligation of the applicant to make the body corporate “aware and arrange a meeting to be called to discuss the matter”. I note that the applicant disputes that he was the secretary of the body corporate at the relevant time.

The body corporate further states that –

Mr Glenn did not at any time make a request to the body corporate to install a barrier in front of his unit. The work was done on a long weekend without body corporate knowledge or approval. ...

At no time has Mr Glenn given the committee a copy of any report which should have been forthcoming when an inspection was done on this unit in April / May approximately and evidence of termite activity was reported to be found. ...

The body corporate seems to think that the applicant is in fact response for the termite infestation of his lot, due to his failure to repair a leak in the laundry of his lot. The body corporate states –

The report of 07/06/00 states that the laundry tubs plumbing is leaking underneath and the shower recess is holding moisture and that there is continuous moisture to concealed timber. It also recommends that the overflow pipe from the hot water system should be drained further away from the house and that the landscape timbers should be replaced with non susceptible material. All of the above are conducive to termite activity.

The body corporate has not provided a copy of this report with its submission. The body corporate is essentially saying that –

• It was not informed by the applicant of relevant information which he knew;

• That the applicant acted unilaterally regarding inspections and treatment of his lot;

• The applicant may in fact be responsible for damage to his lot, because of his failure to properly repair the lot;

• Finally the body corporate denies that it was aware of information which would or should have caused it to have acted earlier.

I consider the information provided by both the applicant and the body corporate to be unsatisfactory, and in the circumstances, I am reluctant to rely on either to any significant extent. I suggest that the truth of this matter lies somewhere between the statements of the applicant and the body corporate.

What I propose to order is to dismiss the applicant’s claim to reimbursement of certain expenses. In particular, the applicant’s claim for the cost of the installation of a termite barrier, inspection fees, and the cost of a visual termite inspection and termite monitoring program, are all dismissed. I take the view that the applicant did to a large extent act unilaterally in incurring these expenses, and did not seek authorisation of the body corporate in any proper way. Moreover, I consider the applicant’s claimed lack of proper maintenance by the body corporate to be remote, and lacking substantiation.

I now turn to the final of the expenses requested by the applicant; namely the cost of rectification of termite damage to his lot including repairs to framework and other support areas. In a telephone conversation between the applicant and David Reardon of this office of 16 January 2001, the applicant indicated that no work had been done to rectify the termite damage to his lot to date.

The nature of termites infestations is that termites travel underground and attack when they find conditions and food sources conducive to their requirements. There is evidence that there was existing termite activity on the common property, prior to the infestation of the applicant’s lot. In the case of a scheme registered as a building unit plan (now a building format plan) the area underneath the lot, and many other areas of a lot (eg. external walls) are normally common property, and therefore the responsibility of the body corporate to maintain. Maintenance includes the prevention of termite infestation or damage via common property to a lot.

Given the pre-existing termite activity, this body corporate should have been on notice of the possibility of termite activity which might affect the common property, or parts of lots adjoining the common property. In my view, it is not sufficient for the body corporate to simply inform owners to have their lots inspected. The body corporate has a duty to be proactive and to ensure, to the greatest extent possible, that lots and common property are not affected by termite activity.

The fact that there has been termite damage to the applicant’s lot evidences that the body corporate has failed in its duty to properly maintain the common property. The body corporate has a responsibility to effect all necessary repairs to the applicant’s lot in the circumstances. This is so notwithstanding that the body corporate is of the view that the applicant’s actions (ie. failure to repair the laundry) may very well have caused or contributed to the termite infestation and consequent damage to the lot.

Section 109(4) provides -

(4) To avoid doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) to maintain a part of a lot in good condition or in a structurally sound condition, the body corporate is not prevented from recovering an amount of damages from a person (whether or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot.

It is clear from this section that if the body corporate is responsible to maintain part of the lot in good condition under subsection (2), then it must do so, and is only entitled to seek reimbursement of the cost, or part thereof, by way of damages, from a person whose actions have caused or contributed to the damage or deterioration of part of the lot. That is, the body corporate is required to rectify the damage or deterioration, and may then seek damages from a person the body corporate considers to be responsible.

I intend to order that the body corporate must attend to rectification of the damage to the applicant’s lot caused by the termite infestation. It will be necessary for the body corporate to obtain quotes and then convene a general meeting of the body corporate to approve a contractor to undertake the required repairs. The applicant will need to allow access to his lot both for the purpose of contractors attending to give quotations for the repair, and thereafter to undertake the work.



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