Carseldine Gardens [2002] QBCCMCmr 29 (24 January 2002)

C G YOUNGREFERENCE: 0474-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20288
Name of Scheme:	Carseldine Gardens
Address of Scheme:	16/16 Stay Place CARSELDINE QLD 4034

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

Joan BELL, the occupier of Lot 18,



C G YOUNGI hereby order that the application for an order that the body corporate compensate the occupier of Lot 18, Joan Bell, for moneys expended in treating termites and repairing termite damage to the lot building, is dismissed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0474-2001

“Carseldine Gardens” CTS 20288

The applicant, Joan Bell of Lot 18, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“I am seeking restitution for money paid out by me to pay for a termite barrier on common ground next to my place & damage done to my unit by termites, caused through negligence by our on site Manager, and to some extent B.C. Committee. He also spends a limited time this end where most of the common ground is in regard to trees, not being treated even now (1 month after knowing we had termites – one tree to come out & ground). They also intend to put a timber wall back on top of cement where they were advised too use concrete slab walls.”

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)). 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 termites have caused extensive damage to the lot building which she occupies and is purchasing from the State Department of Housing. She paid $165 for a pest examination of her lot and the Department has reportedly paid $1,890 for termite treatment and an unknown amount for repairs, though the applicant believes it to be in excess of $5,000.

She says that the Manager (Neville Benson) was aware of termites being present in the scheme in mid-2000. The minutes of the committee meeting held on 30 July 2001, which the applicant attended, support this by the comment, “N. Benson reported that he has seen many white ants in many areas of the common property over the last twelve months”. Her complaint is that neither she nor other owners were warned at the time of the presence of termites. Also, she states (at the time of responding to the committee’s submission) that the committee had not had the trees on common property treated a month after being advised to do so by the pest control service provider.

The report by Bob’s Bug Busters of 3 July 2001, names the points of termite entry as being the weep holes and waste pipes in the area where Lot 18 meets the common property. Termites were also found in the trees on the nearby common property.

“Carseldine Gardens” was registered as a group titles plan in July 1991, now termed a standard format plan. Unlike the only other form of community title scheme, namely a building format plan where the common property includes all land in the scheme, a standard format plan is a subdivision of land and each owner owns the land within the lot boundary including the land under their lot building. This community title arrangement provides more freedom to owners in the use of land for gardens etc., however it also brings greater responsibility for maintenance and repairs. Resolving disputes involving termite damage is a difficult task and must involve looking at the circumstances of each case, however the starting point is that, on the face of it, is that for a building format plan the body corporate is responsible while for a standard format plan the owner is responsible.

The applicant’s case relies on the body corporate having a responsibility to advise owners when there is a possible threat to their property, in particular to advise owners of the presence of termites on the common property.

It was the Resident Manager (Letting Agent/Caretaker) who in this instance first noticed the termites on common property, in mid-2000. The Manager has submitted that he did find termites “approximately 12 months ago (from October 2001)” in timber in the backyard of Unit 5, which he sprayed and disposed of after informing the owner. Then “approximately six months ago (from October 2001)” he removed a railway sleeper from the common property after finding termites under it. These statements differ from the comments in the minutes quoted earlier where the Manager referred to seeing “many termites in many areas” in the year since mid-2000.

Whether the Manager informed the body corporate (committee) of the termites at the time of finding them, is not known. If he did not then the body corporate could not have acted negligently. Also, whether under his agreement he had an explicit or implied duty to report such matters, but failed to do so, is also unknown.

The body corporate does not have a responsibility to protect owner’s lot buildings against termite attacks. It has a responsibility to protect the common property assets (retaining walls, perimeter fence, community buildings etc) against termites. It may have a responsibility in certain circumstances to prevent infestation from the common property to a lot, for example, where there is a termite nest on common property that is known of, but not treated, and it can be shown by an owner that these termites subsequently did damage to a lot building.

In this instance, there was evidence of termites on the common property found by the Manager, but whether these belonged to a nest on common property or came from a nest outside the scheme, is unknown. It is possible the nest may have even been under a lot, the termites having migrated there from outside the scheme without nesting in the common property.

It also may have been the case, given the extent of damage to the applicant’s lot building, that the termites had entered and commenced causing the damage to her building before the Manager first saw them at Unit 5 or on the common property.

There is also evidence that the slab under the applicant’s lot may not have been sprayed with pesticide as required by local government, as no confirmation certificate was placed in the power box as is the usual practice. If the lot was not given this protection by the builder, then this is a problem for the owner and not the body corporate. In a standard format plan, it is the responsibility of owners to protect their individual lots by having their lots checked and treated regularly. The applicant has not confirmed that she has kept her lot treated in this manner.

I would say that the actions of the Manager in spraying the timber found near Unit 5 and then disposing of it, and later disposing of another piece of timber from common property, are not the appropriate behaviour for dealing with termites. When termites are found, the area should be left undisturbed and a pest control agent promptly called to administer a chemical (arsenic compound) to the foraging termites to subsequently pass on to, and poison, the queen. Spraying visible termites, or disposing of the infected timber, has no effect in eradicating termites – in my experience of dealing with many disputes involving termites, unless the queen is destroyed then the nest survives and merely shifts its feeding location.

In all the circumstances of this matter, I cannot see that the body corporate should have the liability of paying for either the applicant’s inspection fee or the building repairs. In any case, in respect to the building repairs the applicant has made no payment and cannot bring a dispute on behalf of the owner of the lot. For the above reasons I have dismissed the application.