Linda Lea [2001] QBCCMCmr 81 (14 February 2001)

P G DanielsREFERENCE: 0085-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28777
Name of Scheme:	Linda Lea
Address of Scheme:	88A Caloundra Road CALOUNDRA QLD 4551

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Gavin John McKellar the owner of lot 1

P G DanielsI hereby order that the application for the following orders:

1.	That the street address number ie “88A” and name “Linda Lea” be displayed at front of property.
2.	That there be reasonable maintenance of driveway and common areas by the developer.
3.	That there be a light installed on the driveway; there is no light whatsoever at present.
4.	That the drainage situation be addressed in that “stormwater” is flowing into the adjacent property “Pelican Heights”.
5.	That for privacy concerns, there be a plant/vine ie. Bougainvillea plant (vine), between Linda Lea’s driveway and adjacent property “Pelican Heights”.

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0085-2001

“Linda Lea” CTS 28777

The applicant, Gavin John McKellar, the owner of lot 1, has sought the following interim and final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	That the street address number ie “88A” and name “Linda Lea” be displayed at front of property.
2.	That there be reasonable maintenance of driveway and common areas by the developer.
3.	That there be a light installed on the driveway; there is no light whatsoever at present.
4.	That the drainage situation be addressed in that “stormwater” is flowing into the adjacent property “Pelican Heights”.
5.	That for privacy concerns, there be a plant/vine ie. Bougainvillea plant (vine), between Linda Lea’s driveway and adjacent property “Pelican Heights”.

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)).

The applicant has purportedly brought this application on behalf of the Body Corporate against Mr G Tosh of Sunstate Developments Pty Ltd. It is indicated in the application that Sunstate Developments is the developer of the scheme.

An adjudicator does not have jurisdiction to resolve a dispute between an owner/Body Corporate and a developer. An adjudicator only has jurisdiction in respect of parties mentioned in the definition of “dispute” in section 182 of the Act which provides as follows:

Definitions for ch 6

182. In this chapter—

“dispute” means a dispute between—

(a) the owner or occupier of a lot included in a community titles

scheme and the owner or occupier of another lot included in the

scheme; or

(b) the body corporate for a community titles scheme and the owner

or occupier of a lot included in the scheme; or

(c) the body corporate for a community titles scheme and a body

corporate manager for the scheme; or

(d) the body corporate for a community titles scheme and a service

contractor for the scheme who is also a letting agent for the

scheme; or

(e) the body corporate for a community titles scheme and a letting

agent for the scheme.

“occupier”, of a lot, means a person in the person’s capacity as the occupier

of the lot, and not, for example, in the person’s capacity as a service

contractor or letting agent for the scheme.

“owner”, of a lot, means a person in the person’s capacity as the owner of

the lot, and not, for example, in the person’s capacity as a service

contractor or letting agent for the scheme.

On that basis this application must be dismissed. I do want to mention a number of other matters.

The applicant has brought this application on the basis that he thinks the developer is in control of the Body Corporate until the final lot is sold. That is not correct. The Body Corporate is comprised of and controlled by the owners. There are many sections of the Act that could be cited to support that proposition. I will cite three sections as follows:

Creation of body corporate for community titles scheme

31. When a community titles scheme is established, a body corporate is

created, and is the body corporate for the scheme.

Membership of body corporate for community titles scheme

32. The members of the body corporate for a community titles scheme

are the owners of all lots included in the scheme.

Ownership of common property

37.(1) Common property for a community titles scheme is owned by the

owners of the lots included in the scheme, as tenants in common, in shares

proportionate to the interest schedule lot entitlements of their respective lots.

It is the Body Corporate that must maintain the common property and has power to make improvements to the common property: sections 109 and 113 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation). I will cite those sections in full:

Duties of body corporate about common property—Act, s 114

109.(1) The body corporate must maintain common property in good

condition, including, to the extent that common property is structural in

nature, in a structurally sound condition.

(2) To the extent that lots included in the scheme are created under a

building format plan of subdivision, the body corporate must—

(a) maintain in good condition—

(i) railings, parapets and balustrades on (whether precisely, or

for all practical purposes) the boundary of a lot and common

property; and

(ii) doors, windows and associated fittings situated in a

boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that

provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not

common property in a structurally sound condition—

(i) foundation structures;

(ii) roofing or other covering structures providing protection;

(iii) essential supporting framework, including load-bearing

walls.

(3) Despite anything in subsections (1) and (2)—

(a) the body corporate is not responsible for maintaining fixtures or

fittings installed by the occupier of a lot if they were installed for

the occupier’s own benefit; and

(b) the owner of the lot is responsible for maintaining utility

infrastructure in good order and condition, to the extent that the

utility infrastructure—

(i) relates only to supplying utility services to a particular lot;

and

(ii) is 1 of the following types—

 hot-water systems

 washing machines

 clothes dryers

 another device providing a utility service of a domestic

nature to a lot.

Examples for subsection (3)(b)—

1. An airconditioning plant is installed on the common property, but relates only

to supplying utility services to a particular lot. The owner of the lot would be

responsible for maintaining the airconditioning equipment.

2. A hot-water system is installed on the common property, but supplies water

only to a particular lot. The owner of the lot would be responsible for maintaining

the hot-water system and the associated pipes and wiring.

(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.

Improvements to common property by body corporate—Act, s 121

113. The body corporate may make improvements to the common

property if—

(a) the cost of the improvements, or, if the improvements together

with associated improvements form a single project for

improvement of the common property, the cost of the entire

project, is not more than an amount worked out by multiplying

the number of lots included in the scheme by $250; or

(b) the improvements are authorised by special resolution;23 or

(c) an adjudicator, under an order made under the dispute resolution

provisions, decides the improvements are reasonably necessary

for the health, safety or security of persons who use the common

property and authorises the improvements.

The Body Corporate can make resolutions at general meeting and depending on the circumstances at a Committee meeting. I draw to the attention of the applicant section 61 of the Regulation that provides as follows:

Requirement for requested extraordinary general meeting

61.(1) An extraordinary general meeting (a “requested extraordinary

general meeting”) of the body corporate must be called if a notice asking

for an extraordinary general meeting to consider and decide motions

proposed in the notice is—

(a) signed by or for the owners of at least 25% of all the lots included

in the scheme; and

(b) given to the secretary or, in the secretary’s absence, the

chairperson or, if the committee has not yet been chosen, given to

the original owner.

(2) The secretary may be presumed to be absent if a notice is given to the

secretary at the address for service of the body corporate, and no reply is

received within 7 days.

(3) A requested extraordinary general meeting must be called and held

within 6 weeks after the notice asking for the meeting is given.

(4) A requested extraordinary general meeting of the body corporate may

be called even though the body corporate’s first annual general meeting has

not yet been held.

If there is no functioning Committee such that a Committee meeting or general meeting cannot be convened, the applicant can apply for an order that an administrator be appointed to convene a general meeting of the Body Corporate. It would be necessary to obtain the written consent of an administrator.

If it is the position of the applicant that someone other than the Body Corporate is liable for work on scheme land, I draw to his attention section 38(3) of the Act which provides as follows:

(3) If, before a community titles scheme is established, a contract is

entered into to have work carried out on land that becomes scheme land—

(a) the body corporate is, on the establishment of the scheme,

subrogated to the rights (if any) of the original owner under the

contract to the extent that the contract applies to work affecting

scheme land that is common property; and

(b) a lot owner is, on the establishment of the scheme, subrogated to

the rights (if any) of the original owner under the contract to the

extent that the contract applies to work affecting scheme land that

is the lot.

Submissions have not been sought in respect of this application as the orders sought cannot be made. I have made a final order dismissing the application.