Isle of Palms Resort [2002] QBCCMCmr 238 (23 April 2002)

RA MeekREFERENCE: 0626-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20860
Name of Scheme:	Isle Of Palms Resort
Address of Scheme:	2-10 Coolgardie Street ELANORA QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate of Isle of Palms Resort

RA MeekI hereby order that, within two (2) months of the date of this order, the owner of lot 19, Marcel Laussau and Melanie Laussau shall paint, or cause to be painted, the exterior surface of their lot to the same standard as other lots in the complex which have been repainted, in the colour approved by the body corporate.

RA MeekI further order that, within two (2) months of the date of this order, the owner of lot 90, Gayle Moreton shall paint, or cause to be painted, the exterior surface of her lot to the same standard as other lots in the complex which have been repainted, in the colour approved by the body corporate.

RA MeekI further order that, within two (2) months of the date of this order, the owners of lot 84, Zoran Maksimovic & Mirjana Maksimovic shall –

• paint, or cause to be painted, the exterior surface of the front of their lot to the same standard as other lots in the complex which have been repainted, in the colour approved by the body corporate;

• render or cause to be re-rendered the end wall facing west to repair holes in the concrete and water retention, and thereafter, paint or cause to be painted, the lower metre or so of the end wall;

• repair the timber brace at the top of the end wall, and paint or cause to same to be repainted.

RA MeekI further order that, within two (2) months of the date of this order, the owners of lot 95, Stjepan Vidacek and Henriette Vidacek shall repaint certain parts of their lot including the guttering, the soffit (under the eves of the lot), the lattice and under the front entrance structure in the colour approved by the body corporate.

RA MeekI further order that, within two (2) months of the date of this order, the owners of lot 136, Leonidas Proestos & Theodora Proestos shall –

• effect necessary repairs to the lattice and timber work of their lot;

• clean marks from the paintwork at the front of their lot.

RA MeekI further order that, within two (2) months of the date of this order, the owners of lot 159, Albert Shuen Wong shall paint, or cause to be painted, the exterior surface of his lot, including the rear deck, to the same standard as other lots in the complex which have been repainted, in the colour approved by the body corporate.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0626-2001

“Isle Of Palms Resort” CTS 20860

The applicant, the Body Corporate for Isle Of Palms Resort, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the lot owners listed in appendix “A” be required to paint their units in accordance with resolutions made by the body corporate in the attached documents and in accordance with the building inspection record.

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)).

In the supporting grounds, the body corporate states that “the lot owners listed in appendix “A” are not complying with section 119 of the BCCM (Accommodation Module) regulation 1997 by painting their units. The failure of the lot owners to paint their units affects the condition and appearance of the resort”.

The lot numbers and owners listed are as follows –

13 Fung Ha Lam Tam

18 Ross Francis & Helen McCoy and Peter Robert & Anne Longmor

19 Marcel & Melanie Laussau

40 Les Joseph Lukas

52 Ki Sing & Niouk Tsine Cheung

54 Leanne M Morris & Leslie Jones

79 Kim P & Renee A Hoang

84 Zoran & Mirjana Maksimovic

90 Gayle Morton

95 S & H Vidacek

97 Branislav & Snezana Durdic

112 Keith Dundee Bostock & Irena Burton

119 Claude & Elaine Devillers

132 Ryosuke Kasahara

136 Leo & Dora Proestos

159 Albert Shuen Wong

The above owners were invited, by notice inviting submissions, to respond to the application. With the exception of one owner, owners did not respond to the application. The one owner who did respond, Mr and Mrs Durdic of lot 97, have stated their circumstances, and the body corporate have now indicated that it is “willing to accept Mr & Mrs Durdic’s explanation of events and will not pursue the painting of the lot”.

The body corporate has attached a copy of the Buildcheck Report of 21 September 2001 to the application. The report states that it is a report on the repainting of the external fabric of the villas. The report summarises that 30 of the 175 units have not been fully repainted and that the lattice work to a number of units has not been adequately repainted.

The scheme is registered under a standard format plan of sub-division (formally a group title plan). In the case of a standard format plan, the subdivision is a subdivision of land and not a building, as is the case with a building format plan. As a subdivision of land, the owner of the lot in a standard format plan is responsible for maintenance of all exterior or external areas of the lot. For example, the owner of a lot is responsible for maintenance of all roof areas, and external walls. In the case of walls which form a dividing boundary with common property, then the owner of the lot is responsible for maintenance of the exterior surface of the wall, as well as the wall itself. This is in contrast to a building format plan where the dividing line between a lot and common property, is the centre of the floor, wall or ceiling.

The basis of an owner’s responsibility to maintain their lot is section 119 of the Accommodation Module which is headed “Obligations of owners and occupiers”. That section provides –

Obligations of owners and occupiers—Act, s 122 [SM, s 120]
119.(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.
(2) The owner of a lot included in the scheme must maintain the lot in good condition.
(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.
(5) This section applies only to a lot that is not a community titles scheme.

On Monday 22 April 2002, I inspected the scheme, in the presence of the body corporate chairperson, Ralph Palesy, and the resident manager, Warner Banks. Owners of lots were invited to attend this inspection if they so desired. Of the above owners, only the agent of the owner of lot 13 attended the inspection.

From the inspection, it is clear that certain lots have been painted during the period since the making of the application and the inspection. These lots are -

•	Ross Francis & Helen McCoy and Peter Robert & Anne Longmor (18)
•	Les Joseph Lukas (40)
•	Ki Sing & Niouk Tsine Cheung (52)
•	Leanne M Morris & Leslie Jones (54)
•	Kim P & Renee A Hoang (79)
•	Keith Dundee Bostock & Irena Burton (112)
•	Claude & Elaine Devillers (119)
•	Ryosuke Kasahara (132)

In contrast, the following lots are in need of repainting from my visual inspection –

•	Marcel & Melanie Laussau (19) – all of lot
•	Gayle Morton (90) – end wall facing west

The following lots are in need of repainting or other repair -

Fung Ha Lam Tam – lot 13

Of the lots I inspected, this lot had not been properly maintained, and was in need of considerable cleaning up and maintenance. Lack of maintenance included –

• Discolouration of the external wall surface – need repainting;

• A large number of dead palm fronds litter the lot;

• The pool is green and thick with algae, and the body corporate expressed concern regarding the pool being a breeding place for mosquitoes;

• The gardens are unkempt, somewhat overgrown and in need of maintenance;

• There is dead plant foliage against the wall surfaces;

• The paintwork of the lot has slight staining, but no pealing;

• There are spider webs on certain of the exterior wall surfaces;

• In the entry to the lot, there is staining from water overflow, the entrance is untidy and dirty, there are watermarks and staining from hornets nests, and paint pealing on downpipes.

However the general deterioration and lack of maintenance were not the subject of the application, and as such, I consider it would not be correct for me to make an order regarding maintenance generally. As regards the standard of painting, this was difficult to assess as it was the first lot I inspected, and in contrast to the other aspects, the paintwork appeared to be in a reasonable condition. Inspection of subsequent lots however suggested that the lot was close to being in need of re-painting.

In the circumstances, I suggest that the body corporate consider the making of a further application concerning all aspects of maintenance. It is clear to me that presently the owner of this lot is failing in their duty under section 119.

Zoran & Mirjana Maksimovic – lot 84

This lot was in need of some maintenance, though not complete repainting. I consider that the front of the lot (facing south) is in need of repainting. When contrasted with lot 85, the difference is noticeable. As well the end wall facing west is in need of some re-rendering to repair holes in the concrete and water retention, and thereafter the lower metre or so of the wall requires repainting. In addition, the timber brace at the top of the end wall is in need of minor repair and repainting.

S & H Vidacek – lot 95

Whilst the entirety of the lot is not in need of repainting, certain parts are including the guttering, the soffit (under the eves of the lot), the lattice and under the front entrance structure.

Leo & Dora Proestos – lot 136

This lot was in need of some maintenance, though not complete repainting. Parts of the lattice and timber work need repair. There are marks on the paintwork at the front of the lot which require cleaning, and some minor repairs to the front wall of the lot under the windows on the first floor level. The Buildcheck report notes that there is damage to the gable end timbers.

Albert Shuen Wong – lot 159

This lot is in need of maintenance. The paintwork is patchy and the concrete block work exposed in a number of areas, in particular around the rear of the lot facing the canal. The rear deck is in need of repainting, as is the area around the front entrance to the lot.