Tahlia Court [2003] QBCCMCmr 553 (4 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0750-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20295
Name of Scheme:	Tahlia Court
Address of Scheme:	Russo Court Strathpine Qld 4500

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

Joan Kathleen Kennedy, the owner of lot 9


I hereby order that the application by Joan Kathleen Kennedy, the owner of lot 9, for an order that the body corporate examine the question of responsibility for, and action arising from structural damage occurring in unit 9, is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0750-2002

"Tahlia Court" CTS 20295

The applicant, Joan Kathleen Kennedy, the owner of lot 9, has sought the following order of an Adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate examine the question of responsibility for, and action arising from structural damage occurring in unit 9.

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

(c) a claimed or anticipated contractual matter about-

(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)).

In her statement of grounds, the applicant refers to –

... Basic examination of the immediate environs of this site reveals marked subsidence and other soil movement like cracks adjacent to the unit. ... This instability of the common property has apparently had a "flow on" effect on the footing of 9 where minimum variation of soil moisture is desired for optimum stability in the reactive clay. The plasticity of clay sheltered beneath the floor of no 9 would naturally favour movement towards the pressure released area of the voids on common property. Cost of repairing the damage to no 9 should be borne by the body corporate for failure to maintain soil stability conditions on adjacent common property.

Submissions were sought from all owners and the body corporate regarding the application. Several owners have responded, all of whom have stated that the repairs are the responsibility of the applicant as the owner of the lot.

In her reply to submissions, the applicant has –

This is a clear case of both developer and the council regulator authority ignoring technical expertise to the detriment of owners like myself. The responsibility for the footing failure at no 9 rests with them.

I do not understand how this final submission assists the applicant’s claim that the body corporate should be responsible for the repair of damage to her lot.

The scheme is registered under a standard format plan of subdivision (formerly a group title plan). The significance of this is that the subdivision is a subdivision of land and not of the building as is the case of a scheme registered under a building format plan. The relevant of this is that the owner of the lot and not the body corporate are responsible for the maintenance of all parts of the lot, as no part of it is common property. This includes the concrete slab floor, and the earth there under.

Reference to section 109(2) of the standard module will show that the body corporate is only responsible to maintain "foundation structures" that are not common property in a structurally sound condition in the case of lots created under a building format plan. In the case of a standard format plan, the responsibility of the body corporate is to maintain common property in good condition, and to the extent that it is structural in nature, in a structurally sound condition.

The common property adjacent to the applicant’s lot is simply unimproved land. There are no improvements located on the common property which the body corporate is required to maintain, excepting perhaps maintenance of the gardens / grassed area. Moreover, the applicant has not established her allegation that it is the instability of the common property which has cause the subsidence of her lot. In all the circumstances, this application is dismissed. The applicant is responsible for the repairs of her lot, unless she can convince some other party (the developer or the local authority) to accept responsibility. This aspect however is not within the jurisdiction of an Adjudicator.