La Cachette [2004] QBCCMCmr 349 (7 July 2004)

Number of Scheme:	11385
Name of Scheme:	La Cachette
Address of Scheme:	4 Berrima Road NOOSA QLD 4567

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

I hereby dismiss the application for an order requiring Gregory Gapp and Karyn Maher to reimburse the Body Corporate’s costs in undertaking particular works affecting Lot 4.

I also dismiss the application for an order requiring Gregory Gapp and Karyn Maher to meet the costs of updating body corporate records.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0303-2003

"La Cachette" CTS 11385

On 12 May 2003, the Applicant (Mr Colin White, the registered Owner of Lot 3) filed a dispute resolution application with the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act).

The Applicant states that he is seeking the following outcomes, quote:

Department of Natural Resources, Mines and Energy records show that the "La Cachette" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 15 August 1980.

The scheme currently consists of four lots and common property. As mentioned above, the Applicant is the registered owner of Lot 3. The "Gapps" referred to by the Applicant are Mr Gregory Gapp and Ms Karyn Maher (previously Gapp). Mr Gapp and Ms Maher are the registered owners of Lot 1, and were previously the registered owners of Lot 4. Ms Kathleen Paragreen is the registered owner of Lot 2.

A standard community management statement was recorded for "La Cachette" on 15 July 2000 and shows that the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) applies to the scheme.

As mentioned above, this application was filed on 12 May 2003. On 23 May 2003, a staff member of this Office wrote to the Applicant and requested clarification of the details of the application, as well as further information about the matters in dispute.

Between 23 May 2003 and 3 June 2003, staff members of this Office had various contacts with the Applicant in an endeavour to clarify the details of the application. The Applicant provided further material about the application in several letters and facsimiles which have largely been incorporated into the supporting grounds to the application.

On 11 July 2003, the Commissioner issued the Body Corporate with formal notice of the application. The Commissioner also invited the Body Corporate Committee and all owners of a lot included in the scheme to make written submissions about the application. Following advice from the Applicant that Ms Paragreen (the Owner of Lot 2) did not receive a copy of the application or the invitation to make a submission, on 4 September 2003 the Commissioner issued notice of the application directly to Ms Paragreen and extended the time allowed for her to make submissions about the application.

Mr Gapp, Ms Maher and Ms Paragreen all made written submissions about the application. In accordance with section 246 of the Act, the Commissioner provided the Applicant with copies of the submissions of Mr Gapp and Ms Maher. The Applicant has made a written reply to those submissions.

On 7 November 2003, the Commissioner made a dispute resolution recommendation that the application should be the subject of mediation, and referred the application to a Dispute Resolution Centre of the Department of Justice and Attorney-General.

Unfortunately, in a letter dated 15 December 2003, the Dispute Resolution Centre advised the Commissioner that a mediation session could not be arranged with the parties. As a result, on 17 December 2003, the Commissioner made a supplementary dispute resolution recommendation that the application should be determined by departmental adjudication. The application was subsequently referred to me for consideration.

After reviewing all of the material, on 20 April 2004 I wrote to the Applicant and explained that I was unable to determine the issues in dispute without a significant amount of further information from him. In my letter, I required the Applicant to provide particular information and materials pertaining to the issues in dispute before I continued with my consideration of the application. At the request of the Applicant, on 10 May 2004 I extended the time allowed for the provision of this information.

I have before me a letter dated 21 June 2004 from the current Body Corporate Manager (Mr Lew Wheller of Noosa District Body Corporate Management). This letter provides most of the information requested of the Applicant in my letter of 20 April 2004.

Section 227 of the Act limits the disputes that may be resolved under the Act’s dispute resolution provisions to those between particular combinations of persons involved in community titles schemes. In this instance, the Applicant has named the "La Cachette" Body Corporate as the other party to this dispute. On its face therefore, the application falls into the category of dispute described by section 227(1)(b) of the Act (a dispute between a body corporate and an owner of a lot included in the scheme).

However, it is clear that in reality, the Applicant is seeking relief against Mr Gapp and Ms Maher at least partly in their purported capacity as committee members and as the previous body corporate managers. While section 227(1)(a) contemplates disputes between the owners of lots included in a community titles scheme, the Act does not allow individual lot owners to bring dispute resolution applications against people (owners or otherwise) in their capacity as body corporate managers or committee members. These types of applications can only be made by the body corporate for the relevant community titles scheme.

Furthermore, I am concerned that Mr Gapp and Ms Maher are not specifically named as respondents to this application notwithstanding that the relief sought by the Applicant is clearly against those persons (although, I do acknowledge that both Mr Gapp and Ms Maher have made submissions about the application).

However, I do not intend to explore these jurisdiction and procedural issues in any significant detail. As will be outlined below, even if these matters are set aside, I do not consider that there is sufficient merit in this application to warrant the orders sought by the Applicant.

I have carefully considered all of the material presented to me. Without seeking to be unduly critical of the Applicant, it seems to me that as well as being difficult to follow, this application and the Applicant’s claims are inadequately explained and lacking in substance.

I have arranged for a copy of Mr Wheller’s response to my letter of 20 April 2004 to be provided to Mr Gapp and Ms Maher. However, as I have not relied upon any parts of this letter to the detriment of Mr Gapp or Ms Maher’s interests, I have not invited them to respond to the material.

I will consider the Applicant’s two main claims individually.

The Applicant has sought an order requiring that the Body Corporate be reimbursed for various works benefiting Lot 4. It is apparent that the Applicant considers that as Mr Gapp and Ms Maher primarily benefited from this work as the then owners of Lot 4, they should bear the costs of the work.

I have had some difficulty establishing the particulars of this claim in two respects. Firstly, the Applicant has failed to provide an adequately clear description of the work carried out to Lot 4. Secondly, the Applicant has failed to present convincing reasons demonstrating why Mr Gapp and Ms Maher should bear the costs of this work.

Before turning to these issues it is worth noting some of the physical features of the building forming the main part of the "La Cachette" community titles scheme. The registered building units plan for the scheme shows that the building consists of six levels (identified as levels A to F). Lots 1, 2 and 3 are located on Levels B, C and D respectively. Lot 4 is located on two levels, E and F, with Level F including an uncovered portion of Lot 4 ( a "roof-top deck" style of area).

Description of work in dispute

In the supporting grounds to the application, the Applicant complains of certain work being carried out for the benefit of Lot 4, the cost of which he considers has been improperly met by the Body Corporate. Specifically, the Applicant states that "the floor of unit 4 has been tiled, the wall of deck has new timber and blueboard and rendered and painted at (the Body Corporate’s) expense at a cost of $4,000". The Applicant also mentions that the work was authorised at an extraordinary general meeting of the Body Corporate held shortly prior to the finalisation of his purchase of Lot 3.

The Applicant has provided a copy of the minutes of an extraordinary general meeting held on 15 July 2002. As I understand it, the work in question followed three resolutions of the Body Corporate made at that meeting regarding motions 2, 3 and 7. The parties are well aware of the terms of those motions as carried at the meeting, so I will not restate them in full here. Briefly however, motion 2 concerned the repair of a roof membrane, including tiling over the newly reinstated membrane. Motion 3 concerned the repair of a "roof parapet wall" including the replacement of rotten timber, waterproofing and rectification of roof tiles. Motion 7 concerned the rendering of an "external wall near roof deck...to ensure membrane is waterproofed".

If I understand their submissions correctly, Mr Gapp and Ms Maher indicate that the work in question was necessary and was the responsibility of the Body Corporate. Mr Gapp and Ms Maher also state that the work was carried out with the agreement of the majority of owners.

In an endeavour to clarify the scope of the work complained of by the Applicant, in my letter to him of 20 April 2004, I requested the following information:

In my letter, I also pointed out to the Applicant particular provisions of the legislation which I considered were relevant in determining responsibility for the work in question (particularly regarding roofing membranes and parapets).

Mr Wheller has provided much of the information requested above under cover of his letter of 21 June 2004. I note from the material that the amount claimed by the Applicant is $3,417.18 rather than the $4,000 first mentioned in the application. I also note that the Applicant has failed to provide the requested description and sketch plan illustrating where the work in question was carried out, particularly in relation to lot boundaries.

Claimed liability of Mr Gapp and Ms Maher for the work in dispute

It is the responsibility of an Applicant to explain and substantiate the basis of any orders sought in a dispute resolution application. In my view, the Applicant has failed to do so in this instance. While the Applicant has provided information and documents relating to the work in question, the Applicant has seemingly ignored, or at least not specifically addressed, the legislative provisions which deal with maintenance responsibilities in community titles schemes. Further, the failure of the Applicant to provide a sketch plan showing the location of the work in dispute in relation to relevant lot boundaries as requested in my letter of 20 April 2004 has particularly hampered my ability to determine responsibility for the work in question. For these reasons, I consider that this part of the application is lacking substance. However, I do intend to make some further observations about maintenance responsibilities in the context of the information provided to me.

The Standard Module includes a number of provisions relating to maintenance responsibilities in community titles schemes. Generally speaking, bodies corporate must maintain common property in a good condition (section 109(1)), and lot owners must maintain their own lots in a good condition (section 120(2)). However, these general principles are qualified and clarified in terms of particular maintenance obligations, especially in the context of schemes created under a building units plan or building format plan of subdivision.

Of relevance in this case is section 109(2)(a)(iii) of the Standard Module which provides that in the case of a scheme created under a building format plan, the body corporate must maintain any "roofing membranes that are not common property but that provide protection for lots or common property" in a good condition. It is not relevant that the membrane is located within the boundaries of Lot 4 if the membrane provides protection for any of the lots or the common property.

It seems to me that the work contemplated by motion 2 as carried at the 15 July 2002 meeting falls within the meaning of this section and the cost should be met by the Body Corporate. The Applicant has not shown that the work was unnecessary. As a result, from the material before me, it appears that the cost of repairing the roofing membrane should be met by the Body Corporate.
Furthermore, if it was necessary for tiles on an individual lot to be installed, or removed and replaced, to facilitate the Body Corporate meeting its maintenance obligation regarding the roof membrane, then I also consider that it is appropriate for the cost of the tiling to be met by the Body Corporate.

Similarly, the rendering of the "external roof deck wall" contemplated by motion 7 appears to be related to ensuring the effectiveness of the waterproofing membrane in protecting lots included in the scheme. I also consider that the cost of this work should be met by the Body Corporate.

I note that section 109(2)(a)(i) requires bodies corporate for schemes created under a building format plan to maintain in good condition "railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property". The Applicant has failed to show (despite my request) that the parapet in question is not located on the boundary of the lot and common property. In addition, the Applicant has not shown that the parapet in question did not require maintenance. In the circumstances, it seems likely to me that the cost of repairing the parapet is properly met by the Body Corporate.

Overall, and from the material presented and the provisions of the legislation referred to above, it seems to me that the cost of the work complained of by the Applicant is properly met by the Body Corporate, and I have decided to dismiss this part of the application.

The Applicant’s second claim is that as a result of the failure of Mr Gapp and Ms Maher to fulfil their roles as "body corporate managers", the Body Corporate was required to incur significant expense to engage a professional person to re-establish and update body corporate records.

In the original grounds to the application, the Applicant states that in mid-2002, Mr Gapp and Ms Maher accepted responsibility for the administration of the Body Corporate. The Applicant goes on to state that Mr Gapp and Ms Maher left the paperwork "in a shambles" and that "the cost to rectify paperwork approx $2,000". However, this statement is somewhat clarified in subsequent material presented by the Applicant to mean that a body corporate manager provided him with a quotation of approximately $2,000 for updating the records of the Body Corporate.

In my letter of 20 April 2004, I sought to clarify the particulars of this claim with the Applicant. Specifically, I asked the Applicant to provide the following information:

Mr Wheller also provided a copy of a tax invoice showing the Body Corporate was charged $244.25 on 23 February 2004 (this amount was paid on 9 March 2004).

I think it is fair to say that the Applicant has been less that forthcoming about the actual expenditure incurred to re-establish the Body Corporate on a proper legal footing. While I accept that the most of the Applicant’s numerous references to $2,000 throughout the material are qualified as quoted amounts, it seems plain to me that the Applicant considered that Mr Gapp and Ms Maher should be required by this order to pay the Body Corporate the amount of $2,000.

I do not dispute that the Applicant was verbally quoted $2,000 by the Body Corporate Manager for extensive work reconstructing body corporate records and financial statements. However, I also consider that the Applicant had a duty to notify this Office that the actual expenditure incurred by the Body Corporate in re-establishing the Body Corporate was not the $2,000 referred to throughout the material, but $244.25 (almost a tenth of the earlier amount). The Applicant should have known the Body Corporate’s actual expenditure in February 2004.

In any event, I am not satisfied that the Applicant has presented convincing reasons why Mr Gapp and Ms Maher should be personally responsible for the $244.25 incurred by the Body Corporate. The Applicant has not shown that Mr Gapp and Ms Maher were properly engaged as body corporate managers within the meaning of the legislation. For instance, there is no evidence of a body corporate management agreement between the Body Corporate and Mr Gapp and Ms Maher. Rather, it appears that they were simply voluntary committee members endeavouring in good faith to assist in the administration of this small body corporate following the resignation of the previous body corporate manager (Superior Body Corporate Management). Furthermore, I have been not been presented with any real evidence demonstrating the Applicant’s claim that the records were left in a "shambles" following administration by Mr Gapp and Ms Maher.

The Applicant has provided nothing to show that at that time the owners of the other two lots contributed in any significant way to ensure that the Body Corporate was administered in accordance with the legislation. In all of the circumstances, I consider that it is fair and reasonable for the relatively minor costs of re-establishing the Body Corporate on a proper legal footing to be shared by all lot owners.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

La Cachette [2004] QBCCMCmr 349 (7 July 2004)