Ayres Rock [2002] QBCCMCmr 35 (25 January 2002)

RA MeekREFERENCE: 0510-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8983
Name of Scheme:	Ayres Rock
Address of Scheme:	175 Muir Street LABRADOR QLD 4215

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

RA MeekI hereby order that with one (1) month of the date of this order, the body corporate shall pay to the owner of lot 1, Ian Eldridge, the amount of $1012-98 for reimbursement of expenses arising in consequence of the termite infestation for which the body corporate was responsible to prevent.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0510-2001

“Ayres Rock” CTS 8983

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

That the owner of lot 1, Mr I Eldridge be ordered to reimburse the body corporate $8,346.78 (including GST) immediately, being cost of repairs to and refurbishing lot 1, following removal of termite nests and all termite affected materials.

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)).

I do not intend to restate the body corporate’s supporting grounds in any detail. In essence the body corporate seeks reimbursement from the owner of lot 1, Ian Eldridge, for the cost of repairs to that lot necessitated by termite infestation to the lot. In part of its grounds, the body corporate states –

At this stage it was not clear whether the termite damage was limited to walls within Lot 1 (and hence the responsibility of the owner of lot 1) or whether it extended to walls which were common property walls or walls which formed the boundary between the common property and any lot or between the two lots (and hence the responsibility of the body corporate). The body corporate therefore advised A&L Cooper that the body corporate would pay for rectification work regarding the termite damage (since the contractor would not be prepared to collect monies from different entitles in respect of what was essentially one job).

The body corporate further states that –

The letting agent for the owner of lot 1 was aware that A&L Cooper was carrying out the work.

A pest inspection report stated that –

... There was a termite nest located alongside a tree in the neighbouring body corporate. ... (and that) the termite damage, although extensive, appeared to be localized within unit 1 and had not spread to any other part of the building.

It is acknowledged in the grounds that “the body corporate manager dealt with A&L Cooper Contractors with regard to work they were carrying out on lot 1”. The body corporate manager did issue a letter addressed to “To whom it may concern” which confirmed that the body corporate would pay for rectification work re termite damage but will not pay for renovation. This letter is unequivocal in its terms, and for example, does not indicate that responsibility for the cost of repairs will be determined once the location of damage is known.

The owner of lot 1, Ian Eldridge, has responded by way of submission. Eldridge makes a number of points (and allegations) in that submission, including –

• The committee has failed in their duty of care to protect the common property from vermin and / or termites and to prevent their entry to individual lots.

• That the source of the termite infestation was the nest located alongside a tree in the neighbouring body corporate, and that these termites had to “cross common property the responsibility of the committee”.

• He relies on the letter of the body corporate manager stating that the body corporate would pay for rectification work, and states that “At no time did I or my agent discuss the repairs with A&L Cooper, nor did we issue any instructions to the builder”.

• That no renovation work was undertaken by A&L Cooper, and that all renovation work was “handled and paid for by my agent”.

Ian Eldridge then claims an amount against body corporate of over $3000 for “unpaid accounts” including painter, electrician and a professional adviser, and for “alternative accommodation”.

It is not correct for the body corporate to state that if the damage was confined to internal walls of the lot, then the repairs were the responsibility of the owner of the lot. In a building units plan (now a building format plan), it is the responsibility of the body corporate to control or prevent termite infestation both to common property, and lots. The boundary of a lot with another lot or with common property is the centre of the floor, wall or ceiling located on a boundary line. In the case of this scheme, the centre of the floor slab would be the boundary of the lot with common property.

There is no clear evidence before me as to how the termites came to be in lot 1. However, I conclude that it is reasonable to assume that they were able to enter the lot via common property, namely the ground under the concrete slab floor. The body corporate was at all times responsible to prevent termite infestation via common property. I conclude that in the cast of the infestation of lot 1, the body corporate failed in this responsibility. In the circumstances, it is the body corporate who is responsible for the rectification of damage to lot 1, and not the owner of that lot. For this reason, I intend to dismiss this application. The body corporate is not entitled to reimbursement for the costs of effecting repairs.
I now intend to consider the claim of Ian Eldridge against the body corporate. Eldridge claims costs for a painter ($935) and electrician ($77.98), a professional adviser ($1250) and for alternative accommodation ($800). The office has never accepted that an adjudicator has jurisdiction to order reimbursement of claims for items such as professional advice or alternative accommodation or loss of rent for that matter. Consequently, no order will be made in respect of these amounts.

However, the painting and electrical work would seem to be related to the rectification work necessitated by the infestation of termites, for which I have found the body corporate to be responsible. The body corporate alleged that the amount it claimed included amounts for improvements within lot 1. The builder rejected this stating that the invoice is “all rectification of termite damage”.

In the circumstances, I consider it is appropriate that the body corporate pay the cost of painting and electrical work claimed. I intend to order that the body corporate pay to the owner of lot 1, Ian Eldridge, the amount of $1012.98 being reimbursement for these two expenses.





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