Pacific View Kirra [2003] QBCCMCmr 69 (15 August 2003)

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 the Body Corporate Pacific View Kirra,

I hereby order that, within 1 month of the date of this order, the original developers, Petar Piskulovic, Nedeljka Piskulovic, Ljubomir Piskulovic and Ljubica Piskulovic, shall, at their expense, attend to the repair or if necessary replacement of the internal ventilation system in the internal bathrooms of lots 3, 4, 8, 9, 13 and 14.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0110-2003

"Pacific View Kirra" CTS 24238

The applicant, the body corporate for Pacific View Kirra, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:-

That the pool storeroom which is on the title of unit 17 be transferred to the body corporate.

That the original body corporate remedy the serious pigeon problem, including the removal of pigeons, their nests and excrement which are a serious health hazard.

That the original body corporate rectify the internal ventilation system in the internal bathrooms of units 3, 4, 8, 9, 13 and 14.

That the original body corporate bring the fire safety equipment to standards of compliance according to the Fire Services Act.

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)).

Since the application to resolve a dispute was lodged on 19 February 2003, a number of matters have been resolved by negotiation between the body corporate and the Piskulovics. Firstly, the certificate of classification and the fire safety certificate, and the plans and drawings for the scheme, were delivered by the Piskulovics to the body corporate manager on 2 April 2003, as was confirmed in a letter dated 7 April 2003 from the body corporate manager to the Commissioner. Secondly, the transfer of the area housing the pool equipment from lot 17 to common property was effected by the preparation of a new plan, and further amendments to the by-laws relating to the use of lot 17 were incorporated in a new community management statement, to which the body corporate gave its consent by resolution without dissent at the extraordinary general meeting held on 22 May 2003. The resultant plan and a request to record the new community management statement have not as yet been lodged, but under section 65(1) of the Act, the body corporate has until 22 August 2003 to do so.

It is unclear from the material before me what was ultimately resolved in relation to the costs of the new plan and community management statement. I note that the body corporate manager wrote to the Piskulovics’ solicitors on 3 December 2002, in part, as follows:

"We ... advise that the body corporate is willing to meet all costs associated with consent and lodgement with the Gold Coast City Council if the original owner arranges and meets the cost of the survey plan, preparation of the new CNS and associated lodgement costs."

I have not been provided with the solicitors’ response to this letter, but the issue should have been resolved between the parties at the time that the agreement was reached to transfer the relevant area to the common property. However, I am unable to make an order in relation to costs in these circumstances. The Act allows me to make orders in relation to compensation or cost of repairs where property damage has occurred (section 281 of the Act) or in limited situations, to make an order for costs where an application is dismissed for being frivolous, vexatious, misconceived or without substance (section 270(3) of the Act). I also note that there has been a further stand-off between the applicant and the Piskulovics’ solicitors over the reimbursement by the body corporate of a building insurance adjustment. I can only adjudicate on matters in respect of which orders have been sought. No order has been sought in relation to the building insurance.

The remaining matters relate to maintenance issues.

I note from a copy of a contract entered into between Robert & Brigitte Lancaster and the Piskulovics that one of the special conditions of the contract was that the Piskulovics undertook to perform at their own expense, all duties imposed upon them by the Act until the date on which half of the lots in the scheme had been sold. According to titles office records, transfers for half of the lots had been lodged for registration by October 2002. I therefore do not accept the submission of Petar Piskulovic dated 4 April 2003 that there was no obligation on the original owner to continue to maintain a building after sale, when in this instance a specific condition of sale to those owners was expressed in the terms stated above.

The first matter relates to the presence of pigeons at the scheme. The material before me indicates that some form of wire meshing and roosting prevention had been put in place by the Piskulovics, but the problem seemed to arise from the large number of homing pigeons. There is no evidence before me that the Piskulovics had ever housed pigeons at the scheme. I am not satisfied that the uninvited and on-going presence of the pigeons at the scheme was a matter for which the Piskulovics could be held responsible. I do not propose to make any order in relation to the pigeon eradication scheme.

The second matter relates to the ventilation fan failure. This matter falls squarely within the responsibility of the body corporate to maintain common property and utility infrastructure in good condition. As the Piskulovics had undertaken to attend to all such matters at their expense until half of the lots were sold, and as this problem was notified to the Piskulovics prior to October 2002 I am satisfied that they should be held responsible for the cost of repair, or, if necessary, replacement, of the ventilation fan, in accordance with their undertaking. I have ordered accordingly.

The third matter relates to the fire safety equipment. I have not been provided with any official documentation to support the applicant’s claim that the equipment was non-compliant. I note the invoice from Wormald which confirms that the equipment was serviced on 18 March 2003, but this does not assist me. I have only the advice of an owner that a 10 year old extinguisher must be replaced. I also note, for example, that the service of the hose reels incurred no charge, as did the level two service of one of the extinguishers. I do not propose to make any order in relation to the fire safety equipment.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Pacific View Kirra [2003] QBCCMCmr 69 (15 August 2003)