Gemview Court [2001] QBCCMCmr 292 (31 May 2001)

P J HanlyREFERENCE: 0083-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20898
Name of Scheme:	Gemview Court
Address of Scheme:	410 Chatswood Road SHAILER PARK QLD 4128

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

Oliver Black & Patricia May Black, the owners of lot 6



I hereby order that, within 1 month of the date of this order, the body corporate for Gemview Court, CTS 1882 shall arrange for the following maintenance to be carried out on the garden beds located along the north-eastern and north-western boundaries of the scheme:

• Remove any pieces of broken concrete, bricks and roof tiles from gardens.

• Ensure that pine bark chips on garden beds are properly distributed to cover any exposed black plastic sheeting used as a weed control.

• Poison or remove all weeds and grass in the garden beds.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0083-2001

“Gemview Court” CTS 20898

The applicants, Oliver Black and Patricia May Black, the owners of lot 6, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We would like the “common property” to be maintained and kept in good condition the gardens at the rear of property are a mess through neglect. They are never weeded.

We have brought this to the attention of Premier Body Corporate management and also the chairman Mr. John Rodwell.

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 applicants (the Blacks) have stated that they complained a number of times to the body corporate manager (Premier) and the chairperson about the lack of maintenance to the gardens. Copies of the responses by Premier were included with the application. I do not intend to restate all of the material contained in these responses, except to the extent that certain points may be pertinent.

Submissions were sought from all other owners and the committee. A submission was received from the chairperson, Mr J Rodwell, who expressed the view that the common property was generally maintained satisfactorily. No other submissions were received.

The Black’s response to the chairperson’s submission refuted his claims and noted that the gardener put a whipper-snipper over some of the weeds. The Blacks also included a copy of a duty list for the Handyman/Caretaker, which had been prepared by the chairperson in June 1999.

On 29 May 2001, an inspector from the Commissioner’s Office conducted an inspection of the scheme. The applicants and the chairperson were present at the inspection. The inspection report confirms that the gardens are in much the same state as they appear to be in the photographs supplied with the application. The chairperson informed the inspector that the handyman/caretaker (gardener) is employed to visit the scheme once a week for approximately an hour, and is paid $10.00 plus GST for this service.

On the basis of the photographs supplied with the application and the inspector’s report, I am satisfied that maintenance to the gardens is warranted. Accordingly, I have made an order in the terms sought. However there will obviously be further issues in relation to the ongoing maintenance of the gardens and the scheme generally.

The body corporate has a duty under the Act to maintain common property in good condition for the benefit of lot owners. At the annual general meeting the body corporate must fix contributions to be levied on owners to cover necessary costs, including maintenance. The parties should be aware that maintenance costs will necessarily increase over time and the body corporate will have to make commensurate adjustments to its contributions to meet those increases.

On the material available to me, it appears unreasonable to expect that a gardener employed for one hour per week would be able to properly maintain the gardens and carry out the duties listed in the chairperson’s list of duties dated 2 June 1999. Additionally, to expect that the gardener will do this for $10.00 an hour also seems unreasonable. I note from the inspector’s report that this issue was raised with the Blacks and the chairperson at the time of the inspection.

It may be advisable for the body corporate to revisit its agreement with the gardener with a view to establishing a proper maintenance program. This may necessitate an increase not only in the number of hours that the gardener is in attendance at the scheme, but also in the gardener’s hourly rate.

There also appears to be some reluctance on the part of the Blacks to involve themselves directly in any liaison with the gardener. I note from the inspector’s report that the chairperson had suggested that Blacks approach the gardener with their specific requests so that they could be attended to on the day the gardener visited the scheme. It seems Mr Black had rejected this suggestion on the basis that he had relinquished his responsibility when he resigned from the committee.

Whilst it is usually the committee’s responsibility to be the first contact with the body corporate’s contractors, it is sometimes easier for non-committee members, particularly those who are usually on-site, to act as the committee’s contact. However, as the Blacks do not want to be involved in this way, I recommend that any specific requests they might have for the gardener could be given to the chairperson who in turn could either ring or leave a note for the gardener.