Fairfield Corporate Park [2004] QBCCMCmr 116 (25 February 2004)

Number of Scheme:	4759
Name of Scheme:	Fairfield Corporate Park
Address of Scheme:	35 Ethel Street YEERONGPILLY QLD 4105

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mr & Mrs Lipski, the Owner(s) of lot 7

I hereby order that, in respect of the costs of rectification required to lot 7 as a result of damage from termites:

1. The body corporate (respondent) is responsible for three quarters of the costs due to the termites coming onto the applicants’ lot from the common property and the body corporate’s failure to take reasonable steps to prevent or control termites on the common property; and
2. The owners of lot 7, Julek and Ada Lipski (applicants) are responsible for one quarter of the costs as their failure to detect the termites at an early stage resulted in more damage to the lot than would otherwise have occurred.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0625-2003

"Fairfield Corporate Park" CTS 4759

Fairfield Corporate Park Community Titles Scheme (FCP) is an 8 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Commercial Module Regulation (Commercial Module). The scheme is designed for commercial purposes.

Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Julek Lipski and Ada Lipski, the owners of lot 7 (applicants) seeking orders against the body corporate (respondent).

The applicants are seeking a declaration that the body corporate is responsible for the rectification required to lot 7 due to damage from termites.

The applicants’ main submissions were that the body corporate failed to take adequate precautions to prevent or limit termites on the common property and that the termites came into their lot from the common property.

There was no submission on behalf of the body corporate committee. However, submissions were made by other owners to the effect that:

The submissions from lot owners that owners should be generally responsible for the maintenance of the interior of their lots is correct (Commercial Module, 100(2)). In order to justify recovering payment from the body corporate for termite damage to the interior of their lot, the applicants will need to establish that the termite damage to their lot was caused by the body corporate’s failure to engage in proper pest prevention in respect of the common property.

Subject to limited exceptions, the body corporate is responsible for maintenance of the common property (Commercial Module, 89(1)). The body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners (Act, 152(1)).

The scheme is registered under a building units plan and the main areas in which termite prevention and control methods can be undertaken are common property. The body corporate’s responsibility to maintain the common property would include a responsibility for reasonable pest prevention.
If termites have entered the applicants’ lot and caused damage as a result of the body corporate failing to take reasonable termite prevention measures then the applicants can seek to recover the cost of repairs from the body corporate on this basis.

Whether the body corporate has failed in its duty to undertake reasonable termite prevention and control on the common property requires consideration of what threat existed and what steps were taken. On balance, I consider that the body corporate has failed in its duty. The visual inspection report from the pest management contractor indicates that the termites did come into the applicant’s unit from the common property, stating that a termite nest was located in a tree stump in the garden bed next to unit 7. This was not the first time that the scheme had been threatened by termites as records from an annual general meeting held in 1999 indicate that termites had been detected in some units at that time. Given this history, I would expect that a minimum level of termite protection and control would be an annual inspection for any termite activity. The report from the pest management contractor engaged by the body corporate after this latest attack states "Due to the ongoing problem over the years at this complex, we strongly recommend an annual inspection be carried out. Added to this we recommend that a chemical barrier be put in place around the perimeter of the building. The only drawback with this treatment is that there would be specific limitations due to there being the golf course attached to one side of the factory units. In addition, on the other side, another person’s property is attached, which we also could not treat. Therefore, termites are free to attack the complexes via these points of entry."

It is for the body corporate to decide what particular steps it wishes to take to protect the scheme from attack by termites. However, the body corporate’s failure to take appropriate steps to protect against attack by termites can result in the body corporate being liable to pay for the cost of repairs to lots. The body corporate has a duty to maintain the common property. If it is reasonably foreseeable that failure to properly maintain the common property will result in damage to individual lots then the body corporate can be held responsible for the damage to the individual lots.

The termites may have first come onto the applicants’ lot because of the body corporate’s failure to take adequate precautions in inspecting or treating the common property. However, the termite damage is more severe then it otherwise would have been due to the applicants’ failure to detect the termites at an early stage.

In particular, there are submissions from one owner that termite mud trails were evident in two places on the face of the internal wall, indicative that the applicants had allowed termite activity to continue for a number of months prior to seeking rectification. It is not uncommon that termites will remain undetected for a significant period of time and can create a significant amount of damage while remaining undetected. However, it would be expected that the applicants would notice mud trails and take steps to have them investigated. Failure to do this is indicative that the applicants failed to take proper steps to maintain their lot (Commercial Module, 100(2)). This has contributed to the extent of termite damage to the lot.

It therefore appears that both parties should take some responsibility for the damage. The question that then arises is the extent of responsibility that each party should take.

I am required to make an order that is "just and equitable" to resolve a dispute (Act, 276).

From the evidence provided, it appears that the primary cause of damage to the applicants’ lot was the failure of the body corporate to take proper steps to prevent or control termites on the common property. It was reasonably foreseeable that if the body corporate failed to prevent or control termites on the common property that these termites would enter undetected into someone’s lot. As it was, the termites entered the applicants’ lot and caused a significant amount of damage without being detected. However, once mud trails were clearly evident, the applicants should have become aware of the presence of termites and taken steps to have them eradicated. Failure to do this resulted in the termites causing more damage then they otherwise would have.

On balance, it appears that the body corporate’s failure was the substantive cause of the damage in allowing it to occur in the first place. However, the applicants should make some contribution to reflect the damage being more extensive then it would have been if they had noticed the termites earlier. I consider it just and equitable that the body corporate pay for three quarters of the costs of repair and the applicants pay for one quarter of the costs themselves.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Fairfield Corporate Park [2004] QBCCMCmr 116 (25 February 2004)