Coburg Close [2003] QBCCMCmr 352 (28 January 2003)

Last Updated: 7 September 2007

C G YOUNGREFERENCE: 0676-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20730
Name of Scheme:	Coburg Close
Address of Scheme:	225 Coburg Street West, CLEVELAND Q 4163

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

Susan BRITTON, as a co-owner of Lot 7,



C G YOUNGI hereby order that the application for an order to compensate the co-owners of Lot 7, Susan Britton and Tracy Kelly, the amount of $3,530 for the rectification of their lot building (walls, ceilings and other structures) damaged by termites, and for the body corporate to carry out other rectification work to the lot building in consequence of the termite damage, is dismissed.

I further order that, in consequence of a further order sought by the applicants for "Termite control/termite treatment/barrier system", the body corporate must within three (3) months of this date order engage a pest control expert to inspect the common property and any body corporate assets for termite presence and damage, and take such steps as are necessary to repair any damage to property and to eradicate any termites found. Further, it must regularly have pest inspections carried out and any reasonable recommended control measures and treatments carried out as is found necessary from time to time.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0676-2002

"Coburg Close" CTS 20730

This is the final order to an application by Susan Britton of Lot 7, who has sought the following order under the Body Corporate and Community Management Act 1997 ("the Act") –

"Compensation for costs in relation to purchasing of material and labour to repair the damage caused by the termites. This includes all timber purchased to replace the timber destroyed by the termites, the cost of purchasing and replacing the plasterboard that was removed to allow replacement of the destroyed timber, and the cost of repainting the walls and ceiling to the affected area. The damage caused was throughout the bottom storey of my townhouse. The damage was in most walls, the floor and in the bottom plate. I was required to move out of my townhouse as the kitchen and laundry had to be removed, aswell as the plaster board from the walls. The water was also required to be disconnected.

(Compensation - $3,530)

Repair to building structure.

Termite control/termite treatment/barrier system."

The applicant also sought an interim order and on 16 December 2002 the following Interim Order 676-2002 was issued –

I hereby order that the application by Susan Britton, the co-owner of lot 7, for an interim order that the Body Corporate treat premises for termites, is dismissed.

JURISDICTION:

This is a dispute between an owner (the applicant Sue Britton of Lot 7) and the body corporate (the respondent) seeking compensation for the reinstatement of her termite-damaged lot building, repairs to the building structure, and termite inspection and control measures to be undertaken on the common property. These are matters that come within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

General powers of an adjudicator in making an order:
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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:

In accordance with section 194 of the Act, copies of the application were provided to the body corporate (committee) as the respondent in the dispute, and to all owners, with an invitation for the committee and each owner to respond to the application. The committee did not make a submission, though submissions were received from the owners of all lot owners except Lot 5. Following inspecting the submissions, the applicant lodged a written reply in response to them.

The applicant states that she purchased the lot in September 2000 and as part of her pre-purchase checks, she had a pest inspection of the lot building carried out. The inspection found no termites present but reported that there were signs of old termite activity in the back retaining wall. At a body corporate meeting on 4 December 2001, owners resolved to obtain tenders for selection of a pest controller to inspect the common property for termites, however this was never done. Because of termite infestation, the common property fences and retaining walls were demolished and replaced.

The applicant does not state when she discovered that termite damage had occurred to her unit, though copies of invoices for repair materials submitted have 9 November 2002 as the earliest date.

The compensation claim comprises expenditures incurred by the applicant in purchasing structural timber, tiles, kitchen benchtops, kitchen flooring, and sundry items (paint, nails, mechanical digging etc). The work had not been completed at the time of lodging the application, and this is why the applicant has added a claim for "repair to building structure" for the balance of the work.

Neither the body corporate committee nor the Body Corporate Manager, B & D Body Corporate Management Cleveland, made a submission though, as already stated, all owners (except for Lot 5) made submissions.

Two owners blamed the Body Corporate Manager company for not carrying out the work as agreed to at the meeting on 4 December 2001 and believe that it should compensate the applicant as the termite attack was seemingly a result of its negligence. The other three owners believe the applicant cannot establish that the termite attack was the fault of the body corporate, and therefore it should not be liable to pay compensation or make repairs.

DETERMINATION:

"Coburg Close" was registered as a group titles plan (now called a "standard format plan") on 18 September 1989, and comprises 7 residential lots.

There are two types of community title schemes, a building format plan (formerly a "building unit plan") and a standard format plan ("Coburg Close"). Under the former, lot boundaries only extend to the mid-point of the floor, wall, and ceiling boundary structures of the lot. The outer surfaces of the scheme building, the roof and the foundations are common property, as is all of the scheme land under and surrounding the building(s). Section 109(1) of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("Standard Module") imposes a duty on the body corporate to maintain the common property. That maintenance responsibility includes all necessary steps to keep the scheme free of termite infestation.

However, "Coburg Close" is of the other type of community titles scheme, a standard format plan, which is actually a subdivision of land giving each owner the ownership of the land comprised within the specified lot boundaries of their lot, including of course any building on that land. Each owner, therefore, has a much more extensive maintenance responsibility in respect of both the lot grounds and the lot building - this is recognized, for example, in section 109(2) of the Standard Module which imposes certain additional maintenance duties on bodies corporate of a building format plan.

Accordingly, for a lot in a standard format plan such as the applicant’s Lot 7, the responsibility for termite control and damage, on the face of it, rests with the owner under section 120(2) of the Standard Module which imposes on owners the duty to maintain their lot in good condition. It is, for example, the responsibility of individual owners, and not the body corporate, to have regular pest control treatment carried out to protect their own lot building. The body corporate may wish to co-ordinate pest treatment of lot buildings under a section 119 of the Standard Module arrangement, but even such a general treatment cannot be imposed on owners – each owner has the option of participating in a such a scheme-wide treatment arrangement, or pursuing their own treatment. This is despite the cost savings and benefit of a uniform/same-time treatment.

Of course the body corporate is responsible for the maintenance of common property, regardless of whether the scheme is a building format plan or a standard format plan, including pest control. The minute of the resolution relating to the treatment proposed by the body corporate at its meeting on 4 December 2001, states –

"Motion 21 (termite inspection of all Units & the Common Property)

Person proposing – the Committee.

It is proposed that the Body Corporate Committee may call quotes and allot the contract for an inspection for termites (white ants) of all units and the common property.

(Being an ordinary resolution) – Carried: yes 5, no 1, abstained –"

There are some comments I wish to make concerning this resolution that bear on the dispute.

Firstly, the body corporate was properly concerned with the pest inspection of common property – it falls within the general duty of bodies corporate under section 109(1) of the Standard Module as previously stated. However, Motion 21 also seeks an inspection of all units and in doing so, the body corporate goes beyond its jurisdiction – as explained previously, it has no right (even by a by-law to that effect) to include lots, and lot buildings, in a pest inspection, no more than it can oblige owners to submit to a painting contractor engaged by the body corporate. An offer to owners to participate in a general arrangement under section 119 of the Standard Module can be made, but the body corporate cannot impose such a maintenance item on owners.

Secondly, it was the committee that put the motion and it was the committee, acting on behalf of the body corporate, that was responsible for implementing the motion. A Body Corporate Manager is engaged by the body corporate to carry out certain of its duties, however the responsibility for the duty remains with the body corporate and therefore the committee. Accordingly, even if the committee had asked the Body Corporate manager to arrange the pest inspection, it still carried the responsibility to ensure it was done. Of course if the committee gave instructions for it to be done, then it may have some civil redress against the Body Corporate Manager that I do not have jurisdiction to determine.

Reviewing the two points above, in the first place the body corporate had no responsibility to have a pest inspection of lots and lot buildings carried out, and secondly it was the responsibility of the committee to oversee the implementation of its resolution, though only the inspection of the common property was within its ambit of responsibility. But additionally, the owners (including the applicant) should themselves have sought an explanation as to why the inspection had not been carried out – also, an inquiry of the Information Service provided by this office (Freecall 1800 060-119) would have established that pest inspection and control was the individual responsibility of the owner of a lot in a standard format plan scheme.

There may be occasions when an owner of a lot in a standard format plan can provide expert evidence attesting the fact that a termite invasion of an owners lot, (1) emanated from a nest situated on common property, and (2) the invasion was the result of negligence by the body corporate. The applicant has presented no such evidence here and it may even be, as an extreme possibility, that the termite invasion came from outside the scheme to the applicant’s lot, and from there to the common property and perhaps other lots.

Every owner has a responsibility to have expert checks and control measures carried out for their lot or suffer the consequences. In the case of the applicant, that responsibility was especially acute because of the information given her upon taking up ownership in the scheme – that is, the report to her that there was evidence of old termite activity. This should have alerted her to the need for regular inspections and control measures to prevent their return. It is also not beyond the bounds of possibility that the termites may have been present at the time of purchase, despite the pest inspection.

In summary, there is no evidence that persuades me that the normal responsibility of a lot owner in a standard format plan for termite inspection, control measures and rectifying any property damage, should not apply in this instance. Therefore my order is that the application for compensation from the body corporate, and certain repair work by the body corporate, is dismissed.

In regard to the third order sought, "Termite control/termite treatment/barrier system.", the body corporate has no responsibility to either install barrier systems for the protection of lots against termite damage, or to require owners install them. However, the body corporate has a duty to inspect and treat the common property and, there having been termites found in recent times on the common property, my order requires that the body corporate do this.