Dalleck [2002] QBCCMCmr 103 (25 February 2002)

C G YOUNGREFERENCE: 0047-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4288
Name of Scheme:	Dalleck
Address of Scheme:	30 Marsupial Drive COOMBABAH Q 4216

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

Robyn Millicent BLUCHER, as the owner of Lot 2,



C G YOUNGI hereby order that the application for an order 1nthat the owner of Lot 1, Nui Leung Ngai, contribute the amount of $2,173 (Two thousand one hundred and seventy three dollars) for the installation of a termite control barrier around both lot buildings by Elite Pest Control, is dismissed on the grounds that the contribution has now been made.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0047-2002

“Dalleck” CTS 4288

The applicant, Robyn Blucher of Lot 2, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the owner of the other lot, Nui Leung Ngai of Lot 1, contribute the sum of $2,183 as her share in the termite treatment of both lots by Elite Pest Control.

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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

Since the lodgement of this application, and notice by this office to the respondent Ngai on 29 January 2002, the complaint has been resolved by the respondent’s payment of the amount and Elite Pest Control carrying out, or commencing to carry out, the installation of a termite barrier around both lots. Accordingly, my order is to dismiss the application on the ground that the order sought has already been complied with and the dispute no longer exists.

In the submission by the property management agent for the respondent, L J Hooker Labrador, its representative Veronica Hanson points out that the problem was not addressed correctly by the body corporate, which, in practical terms, the applicant Blucher administers. Hanson refers to: the lack of body corporate consideration of the problem, including choosing between at least two tenders (see section 104 of the Standard Module regulations), and the demands by the applicant after having some of the work (spraying) carried out. Also, an inspection carried out by Top Shot Pest Control, engaged by the agent, found no evidence of termites around Lot 1.

Putting aside the alleged failure by the body corporate to follow proper procedure, which is not an issue to be determined in this application, the applicant states that she has had two infestations by termites and had initially brought the problem to the notice of the respondent some 5 months ago. After initially forwarding a cheque, the agent allegedly persuaded the respondent not to contribute, presumably based upon the inspection by Top Shot Pest Control.

This office has dealt with many disputes concerning termite damage and control, more so in recent years. Subterranean termites, the most common and destructive kind, can attack buildings from nests sited many tens of metres away, often from outside a scheme’s boundaries. Where they attack one building in a scheme, it is the opinion of experts in the field, borne out by experience, that the termites will sooner or later attack nearby buildings. In the situation of “Dalleck” with a common floor slab and a common wall separating them, it would be highly likely that Lot 1 would also in time be attacked by the termites, either by entry through the common wall or through an entry point in the slab (shower outlet pipe, laundry overflow pipe, etc).

In other words, the decision by the respondent Ngai to contribute to an inclusive treatment for buildings in the scheme is a wise one in the circumstances of termites having already been found within the scheme. The contribution is an insurance against possible major damage that no owner can afford not to have in such circumstances.
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