Frenchmans Cap [2004] QBCCMCmr 11 (8 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0693-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19858
Name of Scheme:	Frenchmans Cap
Address of Scheme:	2 Cassandra Crescent LABRADOR QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by William Kevin Murphy, the co-owner of lot 2

I hereby order that the body corporate of Frenchmans Cap is responsible to undertake repairs which are necessary to repair the damaged sewerage pipe or pipes located on common property of the scheme. I further order that – 1. Within one (1) week of the date of this order, the owner of lot 1 Mary Noeline Kingston shall obtain a quote for the repair of the damaged pipe, and provide a copy of that quote to the owners of lot 2, William Kevin Murphy and Elizabeth Ann Murphy; 2. The body corporate shall select the quote for repair which is the cheaper of the two quotes obtained by the owner of lot 1 and the owners of lot 2, and shall have the repair work undertaken as soon as possible following determination of the successful contractor; 3. The owners of lots 1 and 2 shall contribute equally towards the cost of repairs of the pipe by each paying one half share of the cost of the repair work when invoiced.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0693-2003

"Frenchmans Cap" CTS 19858

The applicant, William Kevin Murphy, the co-owner of lot 2 has sought the following order of an ajdudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

To carry out repairs to the common sewerage line which is broken with tree roots blocking the line. ...

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)).

This dispute concerns the repair of a sewerage pipe. After reading the material of the applicant and respondent, I determined to convene a teleconference to canvass certain issues arising from the dispute. The teleconference was held on Wednesday 7 January 2004 between myself, the applicant Mr Murphy and the daughter of the owner of lot 1, Mrs Kingston.

The application was restricted to the issue of the damaged pipe. The submission of Mrs Kingston however canvassed other issues including the removal of a tree, the possible annexation of common property, the difficulty of access to obtain a quote, and the possible additional cost of repair due to the construction of a fence by the applicant.

Very early in the teleconference, the representative of Mrs Kingston confirmed both that the pipe was damaged, and further that it was located on common property. Whilst I indicated to both parties that this essentially meant that the order sought would be forthcoming, I did nevertheless canvass the other issues raised in Mrs Kingston’s submission. I discussed each of these issues, canvassed the parties views, and indicated my views. In particular, I consider the alleged annexation of common property to be of some concern. In response, the applicant indicated that he would no longer lock the gate leading to the area including common property. I indicated that as it was common property, the owner of the adjoining lot was entitled to unimpeded access at any time. Mr Murphy appeared to understanding and agree with this.

I concluded the teleconference by indicating that I intended to order that –

• The body corporate would be ordered to repair the pipe;
• Mrs Kingston would be entitled to obtain a quote for repair of the pipe;
• That the cheaper of the two quotes would be the contractor selected;
• That the expense of repairs would be shared equally by both owners.