Helensvale Villas [2002] QBCCMCmr 27 (23 January 2002)

RA MeekREFERENCE: 0500-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7889
Name of Scheme:	Helensvale Villas
Address of Scheme:	11- 15 Lindfied Road HELENSVALE QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Helensvale Villas

RA MeekI hereby order that, on the question of the body corporate’s liability to effect rectification of damage to a lot resulting from termite infestation, that the body corporate is responsible to effect all necessary repairs to the lot in question, lot 7, as are necessary to rectify all damage to property resulting from the infestation of termites to that lot. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0500-2001

“Helensvale Villas” CTS 7889

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

That the extent of the Body Corporates liability to effect rectification of damage to a lot resulting from long term infestation of termites, be clarified.

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 applicant states that –

The purpose of seeking the order is to establish if the owner is responsible to meet some portion of the costs to rectify extensive damage ... .

This matter is a simple one. There is nothing in the body corporate’s material that suggests that the owner of lot 7, Rita Janina O’Brien, has caused or contributed to the termite infestation of her lot. The grounds state –

The (“extraordinary building defect”) were under the shower tray and under the bath, where there was a large penetration of the concrete slab (about 30cms across) and the tray and bath simply “sat on bare earth”. The pest contractors are of the opinion that the termite nests near the bath and under the shower tray have been active for an extended period of time and would not be evident in an inspection.

The scheme has been registered under a building unit plan (now a building format plan). In a building format plan, the boundary of a lot with another lot, or with common property, is the centre of the floor, wall or ceiling located on the boundary line. The body corporate is responsible to maintain common property in good condition (see section 109(1)).

It is clear from the material provided that the termites have originated from common property; that is, both from under and around lots. In particular, a nest has been discovered in the earth under the applicant’s bathroom. Given that there is no “floor”, then the earth would be part of the common property. It is the duty of the body corporate to maintain common property, and in the case of termites to both prevent and eradicate termites, and further, to prevent damage to lots or common property.

The fact that termites have infested this lot evidences that the body corporate has failed in duty to properly maintain the common property. To this extent, the duty of the body corporate is regarded as a strict one. Section 227 of the Act provides as follows –

227 Order to repair damage or pay compensation
(1) If the adjudicator is satisfied that the applicant for the order has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for
the contravention—
(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or
(b) to pay compensation of an amount fixed by the adjudicator.
Example—
A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition, the adjudicator could, on application of the lot’s owner, order the body corporate to have the damage repaired or to pay appropriate compensation.
(2) The order cannot be made if—
(a) for an order under subsection (1)(a)—the cost of carrying out the repairs is more than $75 000; or
(b) for an order made under subsection (1)(b)—the amount of the compensation is more than $10 000.

In the current application, I cannot make an order for repairs under this section for a technical reason; namely that the applicant is not the owner of the lot. However, it is clear from the terms of the section that, in particular circumstances, an adjudicator can order the carrying out of repairs or the payment of compensation to a person who has suffered damage to property because of a contravention of this Act or the community management statement. Moreover, that order will be made against the person whom the adjudicator believes on reasonable grounds to be responsible for the contravention.

What I intend to order is that the body corporate is responsible to effect all necessary repairs to the lot in question, lot 7, as are necessary to rectify all damage to property resulting from the infestation of termites to that lot.



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