Pacific View Kirra [2003] QBCCMCmr 402 (3 March 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0623-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24238
Name of Scheme:	Pacific View Kirra
Address of Scheme:	15 - 17 South Street, KIRRA QLD 4225

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

Kathryn Susan McKean, the owner of lot 13 and Robert Lancaster & Brigitte Lancaster, the co-owners of lot 24

I hereby order that the application for an order for:

1. A termite inspection of all ground floor units by a certified pest controller

2. A termite inspection of all roof voids by this controller

3. A thorough termite inspection of units 16, 21 and 25 (adjoining units) and including the problem unit 17 which has had and may still have a serious problem

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0623-2002

"Pacific View Kirra" CTS 24238

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We request that the following be carried out immediately by the owners, the current body corporate, before the new body corporate is formed by the new owners.

1.	A termite inspection of all ground floor units by a certified pest controller
2.	A termite inspection of all roof voids by this controller
3.	A thorough termite inspection of units 16, 21 and 25 (adjoining units) and including the problem unit 17 which has had and may still have a serious problem.

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)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicants state that they have significant concerns about the possibility of termite damage within the scheme, and point out that despite repeated requests for appropriate inspections to take place, the original owners have not undertaken such inspections. The applicants also refer to an undertaking the original owners gave to parties purchasing lots that, until half of the lots were sold, the original owners would perform at their expense the duties imposed upon them by the Body Corporate and Community Management Act 1997.

Submissions were sought from all owners, the body corporate committee and the original owners.

Numerous owners expressed support for the application. Submissions were received from the original owners, the chairperson, Mr Jones, and three owners.

The original owners (the Piskulovics) stated that it is not necessary to have a termite inspection of the ground floor units, as they are constructed of concrete. The Piskulovics enclosed copies of termite inspection reports, which covered the roof voids and lot 17. The Piskulovics further stated that they no longer own lots 16, 21 and 25, but that prior to the sale of each lot the buyers in question obtained independent pest inspection reports, with which the buyers were satisfied at the time.
The owner of lot 21, Ms Murphy, confirmed that she had had a pest inspection carried out prior to her purchase, and that the inspection revealed no structural or pest problems from the interior inspection. However, Ms Murphy expressed concern that the roof void between her lot and lot 17 had not been inspected, and stated that her pest controller considered such an inspection to be "imperative".

The owner of lot 16, Mr Kiil, supported the application, but did not state any specific concerns.

The owners of lot 18, Mr and Mrs Dart, stated that they did not have a building and pest inspection carried out as the selling agent informed them that it would be a waste of money. They further stated that they were dismayed to learn that the termite problems had commenced in 1999.

The owners of lot 4, Mr and Mrs Hillery, stated that they had had a pest inspection carried out before they purchased their lot, and although moisture penetration was detected in the wall of their second bedroom, no termite infestation was present. However, they stated that their pest inspector had advised them that it was bad building practice to have brick planter boxes installed hard against the external building walls – above the weep holes – as this encouraged entry by termites and other similar vermin.

The body corporate was created upon the establishment of the community titles scheme, namely when the building units plan (building format plan) was registered on 11 September 1997 (section 31 of the Act). The body corporate is comprised of the owners of all of the lots included in the scheme (section 32 of the Act). Thus when the Piskulovics owned all of the lots, they were the body corporate. However, as each lot was sold, the new owner of that lot also became a member of the body corporate. At the date of this order, the Piskulovics own 5 lots, and the remaining 23 lots are owned by a variety of individuals and companies. The body corporate is thus comprised of these 28 owners.

Section 114 of the Act imposes an obligation on the body corporate to administer manage and control the common property and body corporate assets reasonably and for the benefit of lot owners, and to comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme (which in this case is the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

Section 109 of the Standard Module provides that 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.

I note that the Piskulovics gave undertakings to buyers that until half of the total number of lots in the scheme had been sold, they (the Piskulovics) would perform at their own expense the duties imposed upon them by the Act, and would attend to payment of all outgoings out of their own funds.
The concerns expressed by the applicants, and those owners who supported the application, relate to the possibility of structural damage from termite infestation. The Piskulovics claim that the roof voids and lot 17 have been checked and cleared, and provided copies of the termite inspection reports in support of that claim. They also contend that a termite inspection of the ground floor units is not required as the units are constructed of concrete.
I further note that the report on the roof voids, dated 2 November 2002, confirmed that no active termites were found, but strongly recommended that a full inspection and report be carried out every 6 months. The report also revealed that, at the time of the inspection, the degree of risk of termite infestation to the overall property was considered to be moderate to high. In relation to lot 17, the report dated 2 November 2002 confirmed that no active termites were found, but stated that an inspection every 6 months was essential. The report further revealed that, at the time of the inspection, the degree of risk of termite infestation to the overall property was considered to be moderate. The report provided the following additional information: "Using a Tramex moisture meter, no abnormally high moisture readings were recorded. Upon inspection of the roof void I noted that all the extensively damaged (termite damaged) timbers had been replaced. The moderately damaged (termite damaged) timbers in my opinion appear to be structurally sound."

Almost 4 months have elapsed since the last pest inspection and report. In order to discharge its obligations under the Act and the Standard Module, the body corporate will need to implement a strategy to ensure that regular inspections are carried out, particularly in light of the previous infestation of lot 17, and the strong recommendations of the pest inspector. That would suggest that inspections would be required again in two months. It is not clear on the material before me whether the ground floor units will need to be inspected if they are constructed of concrete. However, as the November pest inspections were carried out after the application was lodged, and did not reveal the presence of termites, I do not propose to order that an inspection be carried out at this stage, given that one is due in two months. Furthermore, the November report confirmed that the badly termite-damaged timbers in lot 17 had been replaced, and the moderately termite-damaged timbers had been found to be structurally sound. There is no evidence before me that there is any termite infestation of lots 16, 21 and 25. The owners of those lots, and indeed any other lots in the scheme, are at liberty to have their lots inspected, at their expense, at any time that they choose to do so. In addition, those owners will be at liberty to have their inspectors check the roof voids if they consider that to be necessary.

I have therefore dismissed the application.

I note that the applicants have also expressed concern that the Piskulovics have not provided original plans and specifications. The application did not seek orders in respect of these matters, and I have therefore not considered them. However, it should be noted that failure of an original owner to comply with section 63 of the Standard Module could result in a maximum penalty of 150 penalty units (1 penalty unit = $75.00) being imposed on the original owner. An adjudicator cannot impose a penalty. Further action in relation to this section would need to be taken by the body corporate in the Magistrates Court. The body corporate should take its own legal advice in this regard.2y