Waterways [2002] QBCCMCmr 661 (6 November 2002)

RA MeekREFERENCE: 0363-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14984
Name of Scheme:	Waterways
Address of Scheme:	1-6 / 29 A Peninsula Drive, SURFERS PARADISE QLD 4217

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

Janna Soleil, the occupier of lot 6

RA MeekI hereby order that the application by Janna Soleil, the occupier of lot 6, for orders that -

1. The carport and pathway concrete is cracked and collapsed and is dangerous to walk into the carport at night (coming from street to flats) and needs to be replaced;

2. The body corporate needs to set up a sinking fund,

is dismissed. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0363-2002

“Waterways” CTS 14984

The applicant, Janna Soleil, the occupier of lot 6, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. The carport and pathway concrete is cracked and collapsed and is dangerous to walk into the carport at night (coming from street to flats) ... needs to be replaced;

2. The body corporate needs to set up a sinking fund.

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 applicant initially sought a further order that the retaining wall along the parcel with the riverbank be replaced, but rescinded this item when the wall was replaced by the body corporate.

In the supporting grounds, the applicant states that –

To get to our front doors we have to go through the carport. The edge of the carport from the driveway is all cracked and crumbling and I find this quite dangerous when walking in or out the carport. ...

A couple of weeks ago in the heavy rain we had part of the concrete in front of my front door just crumbled and sunk and there (is) now a hole in the concrete. ...

The applicant provided photos of the concrete in question.

Regarding the sinking fund, the applicant states she does not think the body corporate has one.

This office sought submissions from the body corporate committee and all owners regarding the application. Submissions were received from three of the six owners.

All three owners indicate that the retaining wall has been repaired, and that the body corporate is presently obtaining quotes for repair of the concrete slab in the carport. The “manager” Barbara Laity has stated that the delay in attending to repairs of this aspect is due to the current difficulty in obtaining tradespersons to attend the scheme and quote on repairs.

In the applicant’s reply, she does acknowledge that the body corporate has sought quotes for repair of the concrete.

In the circumstances, I am not prepared to make any order regarding the repair of the concrete. I am satisfied on the evidence available that this body corporate is in the process of attending to this matter.

To the extent that the applicant generally asserts that the owners are seeking to keep maintenance of the building to a minimum “waiting to sell to a developer who wants to put a high rise on the block and make an absolute fortunate on their investment”, the owners who replied reject this. Further, they challenge the right of the applicant, as an occupier to assert such matters.

I agree that as an occupier, the applicant has a more limited range of matters which she might be in dispute with her body corporate about. Whilst I have been prepared to deal with the issue of maintenance of the concrete slab for the reason that the applicant has stated that this aspect is “hazardous and dangerous” and that this creates “dangerous conditions” to live in, I am not prepared to deal with the issue of whether the body corporate should be ordered to establish a “sinking fund”.

Whilst there is a statutory obligation to establish and maintain such a fund (see section 94 of the Standard Module), I consider that it is not a matter of concern to the applicant, as an occupier, whether the body corporate is operating correctly in this regard. Clearly my view would be different if this aspect had been raised by an owner, however this is not the case. I do not consider the applicant’s assertion that the alleged lack of a sinking fund has resulted in a lack of maintenance, which affects her living conditions, is a sufficient basis to consider an application by an occupier for the establishment of a sinking fund. I therefore decline to consider this aspect.



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