Chermside Villas [2001] QBCCMCmr 77 (13 February 2001)

P J HANLYREFERENCE: 0554-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20213
Name of Scheme:	Chermside Villas
Address of Scheme:	PO Box 466 TOOWONG QLD 4066

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

Kimwood Pty Ltd, the owner of lot 32



I hereby order that the application for an order that the body corporate accept responsibility for repairs of structural problems to the building of villa 32/2 Nye Street, Chermside, and cover for water damage, is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0554-2000

“Chermside Villas” CTS 20213

The applicant, Kimwood Pty Ltd, the owner of lot 32, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

That the body corporate accept responsibility for repairs of structural problems to the building of villa 32/2 Nye Street, Chermside and also cover for water damage.

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 a ruling is sought from this office as it is believed that the body corporate should be responsible for the damage under sections 128 and 129 of the Act. The applicant has attached a structural engineer’s report dated 1 September 2000, and various photographs of the damaged brick pier supporting the roof.

The body corporate committee and the body corporate manager were invited to respond to the application. On 7 February 2001 the body corporate manager advised that, as an adjudicator had already dismissed a similar application to the present application, the committee did not intend to lodge a submission in this matter, but would, instead, just await the adjudicator’s order.

2nI note the conclusions expressed in the structural engineer’s report, and in particular his view that “the core of the pier is not filled by grout as shown on structural plans and as is required by the good building practice. This reduces substantially the ability of the pier to resist the lateral load” and “(w)e believe that construction of footing on deep fill together with reactive clays is a principal cause of footing failure.” The engineer also expressed the view that a change in moisture content is also a main factor that affects ground (and foundation) movement. The engineer observed that part of the site adjacent to the damaged pier is not well drained and is water logged from time to time.

The scheme registered as a group titles plan (now a standard format plan) on 1 November 1991. The original developer was Capa-Laba Pty Ltd. The body corporate is comprised of all of the owners of lots in the scheme. The body corporate has certain responsibilities under the Act to maintain common property and body corporate assets (section 114 of the Act and section 109 of the Standard Module).

It is clear from the engineer’s report that the problems associated with the applicants’ lot have been caused by the failure to fill the core of the pier with grout, as shown on the structural plans, and by constructing the footings on deep fill with reactive clays, thereby allowing for settlement of the building. The engineer’s report also identifies the poor drainage of the site as another important factor affecting ground and foundation movement. However, the body corporate had no control over the construction of the lot, and the photographs provided to me show that the area of poor drainage is on the applicant’s lot, and not on common property. I am satisfied that the body corporate is not responsible for the damage which has been caused to the applicants’ lot. I have therefore dismissed the application.