Weyba Gardens II [2001] QBCCMCmr 493 (5 September 2001)

C G YOUNGREFERENCE: 0241-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2482
Name of Scheme:	Weyba Gardens Stage II
Address of Scheme:	4 Wake Weyba Drive NOOSAVILLE QLD 4566

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

Chris ANDREW and Christina Andrew, as the co-owners of Lot 12,



C G YOUNGI hereby order that the application for an order that the body corporate enforce the terms of the caretaking agreement against the resident Letting Agent and Caretaker, Eastmond Enterprises Pty Ltd, to carry out certain maintenance work on the scheme property, is dismissed.

I further order that the secretary must forward a copy of this order and the accompanying reasons to all owners.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0241-2001

“Weyba Gardens Stage II” CTS 2482

The applicants, Chris and Christina Andrew of Lot 12, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“We would please like an Adjudicator to seek the following orders:

1.	Maintenance of resort – to clean resort as per his contract which onsite managers already have broken it, and still they are not doing anything?
2.	That the body corporate enforce the contract for maintenance on the onsite manager.”

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)).

The applicants have submitted a large number of documents and photographs in support of their claim that the scheme property is not being maintained properly by Bob and Roseanne Eastmond, the principals of Eastmond Enterprises Pty Ltd, which company has a management rights agreement with the body corporate to provide letting and caretaking services. They want the body corporate committee, as the respondent in their application, to enforce the terms of the caretaking agreement against the Eastmonds.

In their grounds, the Andrews list a great many areas where they believe the scheme is not being maintained satisfactorily, including: pathways not being swept or hosed; oil stains in garages not being removed; pool furniture not being cleaned; BBQ area not cleaned daily leaving area with dirt and grease; swimming pool not cleaned as frequently as necessary; light bulbs not being changed; broken clotheslines not repaired promptly; sprinkler system only partly working; cobwebs in many areas; and external windows, doors, and gutters not being cleaned.

In support of these allegations, the photographs submitted do show: concrete paving blocks stained and partly covered with leaves; cobwebs around windows and doors, and on stairways and ceilings in common area; leaves and dirt in tracks of external sliding doors, allegedly for over a year; darkened parking bays where bulbs have blown and reportedly not been replaced for over a week; oil stains on car space concrete slabs allegedly uncleaned for a year; cobwebs and stains around pool furniture and a palm frond in pool allegedly for 2 days; darkened pool area – says bulb not changed for 3 weeks; oil stains around BBQ; broken clotheslines.

The documents submitted in support of the application include, apart from copies of letter from the Andrews to the Eastmonds and others complaining of the above matters, the following:

• a copy of the “Chairman’s Annual Report 2000/2001” which includes the comment “It has been disappointing to note the deterioration of the gardens in the last 12 months”. The Chairman then goes on to specify the following problems: weeds growing through garden mulch and concrete cracks; the lawn not having been mowed when he visited on the Australia Day weekend; washing and cleaning rags having fallen from the clothesline through not being pegged; overflowing and smelly rubbish bins; cloudy pool; trees needing cutting back; and clothes line area needs cleaning.

In a submission to this application, the Chairman, M O’Connor, confirms this opinion of the state of the scheme at that time, but then goes on to say that when he visited the resort in May he found it to be “well maintained”. However, he believes the terms of the caretaking agreement are confusing and uncertain and there is a need for a common interpretation of duties by the Eastmonds and the committee, so that each party is aware of what is required to be done.

• Copies of pool water tests showing chlorine imbalance and presence of black spot fungus.

The Andrews also made a number of general comments concerning their relationship with the Eastmonds and the Body Corporate Manager, Dan Philpot. They state that both parties have a hatred towards them over the many complaints they have made concerning the state of the scheme.

Both the committee (as the respondent) and the Eastmonds (as an affected party), were provided with a copy of the application and invited to respond to the issues raised by the Andrews. The Eastmonds made a submission as did M O’Connor as “Body Corp. Chairman”, though he did not state whether other committee members were consulted and it was actually a committee submission.

The Chairman’s change of view regarding the standard of maintenance has already been commented upon, as has been the committee’s recognition of the need for the duties under the caretaking agreement to be jointly agreed upon between the contracting parties.

The Eastmond’s submission addresses each of the issues raised by the Andrews and includes copies of letters and other documents supporting their rebuttal of each of those issues.

The Andrews obtained a copy of the submissions by both the Eastmonds and O’Connor and, as is allowed for in this Office’s process, made a written response to those submissions.

Predictably for parties who hold opposite views and between whom there is little or no communication, their (particularly the Andrews and Eastmonds) writings are full of claim and counter-claim over the maintenance issues. In the circumstance of examining events that have now passed, namely the state of cleanliness of the scheme at particular points in time, it is difficult to ascertain where the truth lies. Certainly the Chairman’s annual report supports the claim that the scheme has been in some disrepair on at least one occasion. The photographs also show grease spots, leaves, cobwebs, etc., though frankly I do not consider them to show a scheme in the state of disrepair one would equate with the language of the Andrews letters and grounds to this application – cobwebs can appear overnight, leaves can blow onto a pathway within hours of it being swept clean, all pools have a chemical imbalance at some time, grease does fall onto the ground after even a single parking of a vehicle, and so on.

In recognition that this is not the first complaint made to this office by the Andrews on the state of cleanliness of the scheme, and given the evidence available from the Chairman’s report and to a lesser degree the documents and photographs supplied, I determined that the most appropriate means of obtaining an objective view of the problem was to conduct an unannounced visit to the scheme to inspect the property generally.

This inspection was carried out by a fellow adjudicator on 29 August 2001, in the presence of Roseanne Eastmond and both applicants, Chris and Christina Andrew. None of the parties had prior knowledge of the visit. I might mention that this was the same adjudicator, Richard Meek, who made the order (Order 14-97 of 13 May 1997) from which the Andrews have quoted favourably when making their response to the submissions.

I have before me the written report by the inspecting adjudicator. The essence of the report is that the scheme property was found to be reasonably well maintained and that the Andrews complaints were not justified. Some specific comments of the inspection are as follows -

• The Andrews pointed out many cobwebs located at various parts of the scheme – they were all situated in corners and gaps but none in a position, such as across a walkway, to indicate that whole areas were neglected. The inspecting adjudicator’s comments mirror my earlier comments that cobwebs can re-appear promptly despite removal.

• The Andrews pointed out some moss growing in the gaps between concrete pavers in the pathways, and that the pavers themselves were blackened in places by mould/fungus. Such blackening is normal with concrete, though it can be temporarily removed, in the main, with pressure hosing. The long term solution is replacement with clay paving bricks but of course this is costly – accordingly, this problem is really one of existing materials, and is a matter for the body corporate to decide where it wishes to fit in the holiday market range (given that the lots are nearly all let for this purpose). The alternative is a regular program of pressure cleaning which will give a reasonable, but short lived, result. This should be part of the party’s determination of duties.

• The BBQ area was found to be in keeping with the category of building, being a rudimentary free standing gas bottle BBQ with separate tile benches. The area was reasonably clean with the tiles showing normal wear and tear after 10 years use. The plate was in a fit state for use.

• The carports had some cobwebs and oil stains on the concrete floors. The manager has stated in his submission that pressure cleaning does not remove the stains completely. I would agree with this, though prior application of a de-greaser spray may produce a better result – though of course the oil stains will reappear in a short time through normal use by vehicles. There is no real solution to this except regular attention – again this will be a matter for agreement between the parties.

• The clothesline area was found to be clean with nearby trees cut back.

• The gardens were found to be in a reasonable state. The debris on the gardens pointed out by the Andrews was minimal. The Andrews complained that the gardens were not watered regularly however this was answered by the Eastmonds saying that this probably coincided with local authority water restrictions. The gardens were found to be adequate for the scheme and did not detract from its appearance.

• The pool was empty at the time of inspection, said to be so for maintenance purposes.

In summary, I repeat that the essence of the inspection report is that the scheme property was found to be reasonably well maintained and that the Andrews complaints were not justified. The scheme is not of 5-star category and the standard of gardens, pool and BBQ furniture, paving materials, carports, etc, are consistent with the operation of a mid-range holiday resort scheme.

While there are some matters that I have pointed out which the committee and the manager need to address by way of common agreement as to the meaning of the terms of the caretaking agreement, the complaints of the Andrews in the application do not warrant an order and I have therefore dismissed the application. I would mention here that it is not the role of adjudicators under the legislation to monitor the performance of caretakers and managers having contracts with bodies corporate – that is matter of contract for the civil courts to determine. What an adjudicator can consider regarding matters such as those raised in this application, is whether the committee, acting as the agent for the body corporate, is satisfactorily monitoring a caretaker/manager’s performance to ensure the contracted duties are being carried out satisfactorily. In this instance, I consider that the committee is properly discharging its role in this regard. The outspokenness of the Chairman over earlier unsatisfactory performance, and the evidence in the documentation of relevant motions being put to owners and concern for determining the caretaking contract terms, are evidence of the committee being active in its role in this regard.

Having made my decision to dismiss the application, there are some further comments I wish to add. There is a great volume of material both in the Andrews application and response to submissions, and in the Eastmonds response to the application. Reading through them reveals the depth of ill-feeling between the parties, and between the Andrews and others. And while the Andrews complain of lack of maintenance, the Eastmonds and O’Connor counterclaim against them over alleged frequent abuse and threatening behaviour by Chris Andrew. There are also other allegations that he has interfered with the security lights and refused to pay the maintenance component of the contributions levied on his lot. In regard to the ill-feeling and abuse allegations, these are matter of a social nature that are best resolved through mediation. If the parties do not agree to this course, then their only avenue is either a complaint to the Police or a private action in the courts. In regard to unpaid contributions, the legislation adequately provides that a simple debt action can be taken in the courts.

The documents also reveal a complaint by the Andrews that on three occasions Roseanne Eastmond has entered the Andrews unit (lot) without invitation. This is not something I wish to comment on, particularly as the Eastmonds have not been asked to comment on the matter and what led to the incidents, except to say that the manager/caretakers are contracted to the body corporate for certain purposes and this gives them no right of access to lots. The body corporate does have this right in certain circumstances described in the legislation. The other side to this relationship between manager/caretaker and owner, is that the contract is with the body corporate, administered by the committee, and an owner cannot interfere with the work of manager/caretaker, or give instructions for certain work to be done, but must bring the matter to the committee for its attention.



This office has expended considerable resources in addressing the concerns of the Andrews, both in past applications and in this one, including examination of a large amount of documentation and a personal on-site inspection by an adjudicator, and it is hoped that this settles the matter. I note from the files that in the past the Andrews gave freely of their time in helping the Eastmonds in maintaining the scheme, and did good work as reported by the Eastmonds to owners. If their expectations on the standard of maintenance is beyond that considered satisfactory by the body corporate (additional maintenance will cost money), then perhaps they might approach the committee to allow them to do extra maintenance near their lot at their own cost. However, this is a matter for the parties to decide themselves.

Because the matter of maintenance is one of interest to all owners, and given the level of past complaints over maintenance and the need to establish a common view on contract maintenance duties, I have ordered that a copy of this order be provided to all owners for their information and consideration.2y