Villa Floridia [2001] QBCCMCmr 41 (30 January 2001)

P J HANLYREFERENCE: 0597-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21854
Name of Scheme:	Villa Floridia
Address of Scheme:	8 Dunlop Court MERMAID WATERS QLD 4218

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

Janie Elizabeth Dallas, the owner of lot 7



I hereby order that the application for an order that the former owner of lot 7, Janie Elizabeth Dallas, be exempted from payment of a special levy for termite prevention treatment, and that she be compensated for the cost, in whole or in part, of the roof repairs carried out to her lot, is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0597-2000

“Villa Floridia” CTS 21854

The applicant, Janie Elizabeth Dallas, the owner of lot 7, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that she be exempted from payment of a special levy for termite prevention treatment, and that she be compensated for the cost, in whole or part, of the roof repairs carried out to her lot.

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 she has twice been put to the expense of repairing her garage roof (shared with lot 8) after the invasion of the roof by termites. The applicant is of the view that inaction on the part of the body corporate committee to eradicate the termites allowed the damage to occur. The applicant now seeks an order that she be exempted from paying a special levy for termite prevention treatment determined by the body corporate at an extraordinary general meeting held on 3 October 2000, because she has had to carry out the roof repairs at her own expense. The applicant also seeks an order that the body corporate compensate her for the whole or part of the roof repairs.

Submissions were sought form the committee and from all owners. A submission was received from the current committee, and another from a former committee member.

The committee stated that the decision to undertake termite prevention treatment was made because of the history of disputes within the scheme. The committee further stated that owners resolved at the extraordinary general meeting to have termite barriers installed around the garages of all lots, and also to have a baiting system for termites placed at regular intervals around the common property. The work was to be paid for by the raising of a special levy.

This scheme was originally registered as a group title plan (now a standard format plan), and as such individual lot owners are responsible for the maintenance of all buildings within their own lots. In this instance, I note that the garage roof was jointly repaired by the owners of lots 7 and 8. I have not been provided with any evidence that the body corporate has failed in its duty to maintain the common property, or that the termite infestation of the garage roof was caused by the negligence of the body corporate. It appears from the material that the pest control company which was initially engaged to inspect the buildings may have been remiss in not identifying the areas of termite infestation at an earlier time, however, the body corporate cannot be blamed for this oversight.

I am satisfied that the body corporate is discharging its responsibility to properly maintain the common property by taking the steps which it has to effect a termite prevention treatment. The placing of baits on the common property is clearly an expense which is required to be paid by the body corporate. The termite barriers around all of the garages would usually be regarded as an expense payable by individual lot owners (for the reason stated above that all buildings within lots are the owners’ responsibility), however, it appears that the body corporate decided to arrange for the work to be done and for all owners to contribute to its cost by way of the special levy, so as to ensure that the treatment was completed at the same time, and that all garages were equally protected. Under normal circumstances, this type of work would fall within the category of a service provided by the body corporate to lot owners, for which the body corporate would seek reimbursement under section 119 of the Standard Module, however because of the need for termite prevention treatment in the form of a termite barrier to be carried out at the same time, I consider that the body corporate has adopted the most practical and fair method of being reimbursed for the work by raising the special levy.

I was informed by the body corporate manager during a telephone conversation on 30 January 2001, that the reason the owners at the extraordinary general meeting held on 3 October 2000 declined to agree to the request that the owners of lots 7 and 8 be exempted from the special levy was that the barrier treatment allegedly carried out around those lots had clearly been unsuccessful, as there had been termite infestation after the treatment was carried out. It was apparently the view of owners that for the barrier treatment to be successful, all garages would have to be treated at the same time, even if this meant re-treating lots 7 and 8.

I also note that since the lodgement of the application, the applicant has disposed of her lot. This does not prevent me from making an order in her favour, if I should be minded to do so, but for the reasons stated above, I do not consider that the applicant is entitled to either of the orders that she has sought. I have accordingly dismissed the application.

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