Tana Court [2003] QBCCMCmr 269 (4 December 2003)

Number of Scheme:	8244
Name of Scheme:	Tana Court
Address of Scheme:	53 Government Road LABRADOR QLD 4215

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

I hereby order by consent that the owner of lot 2, Dorothy Dawn Kirwood, shall pay the sum of $2535.50 by way of contribution to the cost of removing the existing paved driveway at the scheme and installing a new concrete driveway.

I further order by consent that the said sum of $2535.50 shall be drawn from the proceeds of the sale of lot 2 and shall be paid by Mrs Kirwood’s solicitors by bank cheque payable to W W Concrete, PO Box 2915, Southport Q 4215.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0749-2003

"Tana Court" CTS 8244

The applicant, Joyce Amelia Tunney, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

Common driveway is in an unsafe condition. I am seeking funds from unit 2 to share the expense for this commonly used facility.

Section 276(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 the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

On 3 December 2003 I conducted a teleconference with the applicant, Mrs Tunney, and with the owner of lot 2, Dorothy Dawn Kirwood. Mrs Tunney explained that the driveway is in a state of disrepair, with many of the pavers having been dislodged, many pavers being loose and with most of the filling between the pavers having been washed away. Mrs Tunney stated that she had obtained two quotes for the driveway to be replaced with a new concrete driveway. Some discussion then took place between Mrs Tunney and Mrs Kirwood as to whether the present driveway could be repaired or whether, in the long term it would be more cost effective to install a new driveway. Mrs Tunney stated that one of the contractors who had given a quote for a new concrete driveway had told her that if the existing paved driveway were to be repaired it would be likely to only last for another two years. Mrs Kirwood initially expressed reluctance to contribute to the cost of a new concrete driveway, when she had been quoted a much lesser sum to repair the existing driveway. She stated that she was happy to contribute to the repair of the driveway. However, after some further discussion as to the long term benefits of the concrete driveway, Mrs Kirwood agreed to contribute half of the cost of such a driveway.

Mrs Kirwood then advised that she had signed a contract for the sale of her lot. She further advised that settlement is due to be effected later this month. I enquired whether the contract was unconditional, and Mrs Kirwood stated that the contract is subject to finance, although she understood that the purchasers had had finance approved before the contract was signed and were now simply waiting for the lender to formally approve it.

Mrs Kirwood stated that she could not afford to pay her share of the cost of the new driveway until she received the proceeds of the sale of her lot. She also stated that she would contact her solicitor to make sure that the purchasers had no objection to the proposal. She agreed to instruct her solicitor to draw a cheque payable to W W Concrete from the proceeds of sale. She consented to an order being made to that effect.

Mrs Tunney also consented to an order being made in the terms discussed. She stated that she would fax a copy of the quote from W W Concrete for the sum of $5,071.00 (the lower of the quotes obtained by her) to the Commissioner’s office.

I have now received a copy of the quote dated 30 November 2003 from W W Concrete in the sum of $4,610.00 plus GST ($5,071.00). The quote is for the removal of the existing paved driveway and the installation of a concrete driveway.

I have also received a facsimile letter dated 3 December 2003 from Mrs Kirwood in the following terms:

"I am happy to accept $2535.50 as being my total share of costs for concreting driveway at above address (53 Government Road, Labrador) as per quotation No 16 from W W Concrete of Southport as agreed at phone conference 3/12/2003 with Patricia Hanley and Joyce Tunney. To be commenced on settlement day of my sale. Purchasers notified through solicitors."

Section 109(1) of the Standard Module, by which this scheme is regulated, requires the body corporate to maintain common property in good condition. The driveway of this scheme is common property. There are two lots in the scheme, owned by Mrs Tunney and Mrs Kirwood respectively. Accordingly, their contribution to the repair of the driveway should be in equal shares. They have agreed that the driveway is to be replaced, and they have agreed that they will contribute equally to the cost.

I am satisfied that it is just and equitable to make a consent order in the terms agreed by the parties.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Tana Court [2003] QBCCMCmr 269 (4 December 2003)