Laidley Centre Plaza [2002] QBCCMCmr 8 (9 January 2002)

RA MeekREFERENCE: 0024-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3874
Name of Scheme:	Laidley Centre Plaza
Address of Scheme:	Patrick Street and William Street LAIDLEY QLD 4341

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Giles Francis Gargan, the owner of lot 1

RA MeekI hereby order that the application by Giles Francis Gargan, the owner of lot 1, for an order that the monies claimed not to be paid as “we feel not responsible for someone else’s floor”, is dismissed.

I further order that the body corporate was responsible in the circumstances, to repair the floor of lot 3, and accordingly was correct in apportioning the cost of repairs between all owners.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0024-2001

“Laidley Centre Plaza” CTS 3874

The applicant, Giles Francis Gargan, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We would like to make a ruling that the monies claimed not to be paid as we feel not responsible for someone else’s floor.

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)).

This is a difficult application to resolve, particularly so because of the poor standard of the applicant’s originating material, and the lack of any materials providing a contrary view or rather, arguing against the applicant’s proposal. I have been assisted to some extent by the requirement of this office for the body corporate to provide “at least two independent reports that specifically focus on the probable cause of the damage to the floor”. These are available to me in making my decision.

I understand that the applicant seeks to overturn a motion carried unanimously at the AGM held on 10 November 1999. That motion resolved that –

... the quote from Heaton Homes P/L for floor repairs to unit 4 of $4,410 using compressed fibro decking be accepted, and that a special levy of $1,102.50 be placed on each unit holder for payment of the repair.

The minutes indicate that the motion was carried unanimously. The applicant was not in attendance at the meeting.

I note that the application was not made until 8 January 2001, some 14 months approximately after the motion in question was carried. Section 193 of the Act provides –

193 Time limit on certain applications
(1) This section applies to an application for an order declaring void—
(a) a meeting of the committee for the body corporate, or a general meeting of the body corporate; or
(b) a resolution of the committee or body corporate; or
(c) the election of an executive or other member of the committee.
(2) The application must be made within 3 months after—
(a) if subsection (1)(a) applies—the meeting; or
(b) if subsection (1)(b) applies—the meeting at which the resolution was passed or purported to be passed; or
(c) if subsection (1)(c) applies—the meeting at which the executive or other member was elected.
(3) However, if the making of the application does not comply with subsection (2)—
(a) the commissioner must deal with the application (including making a case management recommendation for the application) as if the making of the application complied with subsection (2); and
(b) an adjudicator to whom the application is referred for specialist or department adjudication may, for good reason, waive the non-compliance.

This application is some 11 months out of time. The applicant has not really explained his delay in making application to invalidate the resolution, except that in a Statutory declaration to this office, he states “that I did not notice the early time of 3.00 pm on that notice, given that this was the first meeting, to my knowledge, ever to be held during normal business hours”. The applicant then explained that –

I cannot recall precisely when I found out about the resolution which had been passed at the meeting, although it would have been prior to 30^th May 2000. However I was immediately quite concerned that I was being called upon to pay for repairs to another unit, where it seemed to me that my unit and the structural integrity of the building was not in any jeopardy.

This explanation in my view does not provide good reason why I should waive the non-compliance. The applicant’s solicitor does state –

It would appear to us that the resolution which was passed was oppressive upon all unit holders, other than the proprietor of unit 3. It is our client’s assertion that all unit holders are responsible for their own property, given that there is not evidence that the allegedly damaged floor was part of the common property.

I do note that the body corporate has recently resolved to accept a quote for “the repair of the floor of the vacant shop 2 owned by Mr & Mrs Lin, and that the cost of such repair be met as far as possible from administrative funds, with the balance shortfall if any to be taken from the sinking fund”.

It seems that this issue is a re-current one for the body corporate. Given this, I am prepared to waive the non-compliance and proceed with a determination of this application, as I consider there is some benefit to all members of the body corporate in doing this.

The responsible of the body corporate to maintain common property is set out in section 109 of the standard module which provides –

Duties of body corporate about common property—Act, s 114
109.(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.
(2) To the extent that lots included in the scheme are created under a building format plan of subdivision, the body corporate must—
(a) maintain in good condition—
(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and
(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and
(iii) roofing membranes that are not common property but that provide protection for lots or common property; and
(b) maintain the following elements of scheme land that are not common property in a structurally sound condition—
(i) foundation structures;
(ii) roofing or other covering structures providing protection;
(iii) essential supporting framework, including load-bearing walls. ...

The responsible of an owner to maintain their lot is set out in section 120 of the standard module which provides –

ÿ
Obligations of owners and occupiers—Act, s 122
120.(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.

In response to a request by this office, two reports regarding the replacement of the floor were provided to this office by the body corporate. The first is from Hunt Michel & Partners Pty Ltd, Consulting Engineers dated 23 November 2001. The Hunt Michel report provides in part –

The inspection revealed a timber framed floor close to ground level supported on short timber stumps. ... Close inspection was difficult due to the restrictive access although it was possible to identify some decay evident to the base of stumps. It was also noted that some ant caps were missing and loose timber and debris was also evident. No ventilation of the floor space was evident.

... It is likely that the poor ventilation and condition of this area was the main cause of the previous deterioration of the timber structure. ... The subfloor area at present is an ideal environment for the propagation of termites due to the high moisture content and amount of timber debris. No evidence of termite damage was observed during the inspection however a close and thorough examination was not possible.

A letter from Heaton Homes to the body corporate manager dated 23 November 2001 was also provided. Heaton Homes was the contractor engaged to repair the floor the subject of this application. The letter states in part –

When the vinyl cover was removed I found the particle board was in fairly bad condition allowing for past flooding, but the timbers below were badly eaten out by termites which caused the sagging.

I am given to understand that the building is over 100 years and was formerly a garage, and the area below was never decontaminated. Old age, former flooding and perhaps battery acid may have contributed to the condition of the floor but the main problem was termites. ...

The scheme is registered under a building unit plan of subdivision (now a building format plan). In the case of a building format plan the boundary of a lot with another lot or common property is the centre of a dividing floor wall or ceiling. In the case of this body corporate, the relevant boundary of lot 3 and common property is the centre of the floor.

It seems that the building was not originally built as a community title complex. Rather it seems that the building, or parts of it, are possibly some 100 years old, and it was subdivided by way of a building format plan in 1992. It is doubtful that the developer who registered the plan of sub-division attended to matters of maintenance such as flooring systems prior to registering the plan of subdivision. The relevant of this is that parties, including both the body corporate and owners, are now responsible for the maintenance of a building or buildings which is up to 100 years old, and which has to some extent been affected by time, flooding, perhaps deficient building standards, lack of previous maintenance, and possibly termites.

The issue to be determined is which part of the floor is requiring of maintenance, such that responsible can be determined. It seems there has been debate between the parties on whether the parts of the floor affected could be described as “foundation structures” or “essential supporting framework” which are the responsible of the body corporate under section 109(2)(b) notwithstanding that they are not common property. However it is doubtful in my view whether the parties need to go this far.

It seems to me, based on the information available, that the problem of the floor is one which is occurring from the ground up, rather than the floor down. The reports variously attribute the damage to the floor as being

• decay evident to the base of stumps;

• loose timber and debris was also evident;.

• No ventilation of the floor space was evident;

• past flooding;

• timbers below were badly eaten out by termites which caused the sagging;

• Old age, former flooding and perhaps battery acid may have contributed to the condition of the floor but the main problem was termites.

There is no clarification as to whether the flooding referred to is internal flooding through accidental overflow, or rather external inundation. However, given the context, and in particular, the age of the building, I have assumed the more likely intended reference is to external inundation.

Given this finding, I consider that the body corporate is responsible to repair the floor of lot 3, and that the body corporate was correct in resolving to this effect. In the circumstances, I decline to overturn or invalidate the resolution in question. For this reason, the application is dismissed.

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