Isle of Palms Resort [2002] QBCCMCmr 239 (23 April 2002)

RA MeekREFERENCE: 0627-2001

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 for Isle of Palms Resort

RA MeekI hereby order that within two (2) months of the date of this order, the owner of lot 89, Luke Edwards shall paint, or cause to be painted, the eastern end wall of his lot to the same standard as the remainder of his lot, in the colour approved by the body corporate. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0627-2001

“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 owner be required to paint the end wall of their unit in accordance with resolutions made by the body corporate in the attached documents and in accordance with the building inspection report.

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 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 respondent to this application is Luke Edwards, the owner / occupier of lot 89. In respect of lot 89, the report states that the end wall of the lot has not been painted. The body corporate manager wrote to the Mr Edwards on 19^th April 2001 stating that, based on an earlier report prepared by Jeffrey Hill and Associates Building Consultants, the end wall had not been painted.

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, and lot 89, in the presence of the body corporate chairperson, Ralph Palesy, the resident manager, Warner Banks and the owner of lot 89, Luke Edwards. At the inspection, Mr Edwards contested that the painting of the wall was his responsibility, believing it to be that of the body corporate. I indicated to Mr Edwards that given the scheme being registered under a standard format plan of subdivision, all parts of the wall formed part of his lot, and consequently was his responsibility to maintain.

Mr Edwards expressed annoyance with the lack of body corporate response regarding the enforcement of by-laws; in particular, to the extent that the body corporate had failed to prevent children playing and kicking / hitting balls against his wall. Mr Edwards sought to make the repainting of the wall subject to the enforcement of by-laws by the body corporate. I indicated that I could not make an order on this basis. That if the wall required maintenance, then that he would be required to maintain it, without being entitled to withhold such maintenance.

I did indicate to Mr Edwards that he might approach the committee and resident manager, both of whom were new, regarding his proposal to plant certain shrubs along the wall, so as to prevent the kicking / hitting of balls against it. Failing a satisfactory response from the committee to this request, I indicated that Mr Edwards could approach this office regarding the issue.

In regard to the repainting of the wall, it was clear Mr Edwards had undertaken the painting of all other walls. Given that responsibility for the maintenance of the wall has now been clarified as being that of Mr Edward, I consider that the wall is in need of repainting. It has rust marks appearing on it, and as well, the standard of paintwork is clearly less than that of the adjoining walls which have already been painted. I intend to order that Mr Edwards repaint the end wall of his lot.
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