Isle of Palms Resort [2004] QBCCMCmr 485 (15 October 2004)

Last Updated: 12 March 2009

APPLICANT: BODY CORPORATE FOR ISLE OF PALMS RESORT CTS 20860 AND RESPONDENTS: EASTMOND ENTERPRISES PTY LTD AND VARINDI PTY LTD

ORDER

Adjudicator: R.A.I. MYERS
Date: 15th October 2004
Originating Application: Application No 163 of 2004
Application No 610 of 2004

Upon the parties agreeing that both of the Caretaking Agreement, dated 6th January 1995, and the Letting Agreement, dated 7th May 1997, between the applicant and the respondents remain on foot pending determination of both applications 163 of 2004 and 610 of 2004 and that the applicant for its part and the respondents for their part without prejudice to their rights and remedies will waive, for the duration of these proceedings only, any entitlement that any of them might have arising out of the disputed exercise of the option to extend those said agreements:-

IT IS ORDERED, BY CONSENT, IN APPLICATION 163 OF 2004 THAT:- the applicant file and serve an amended application on or before 4:00pm on 25th October 2004 particularising the “Breach Notices” and the “Directions from the Body Corporate Committee” upon which it relies by:- identifying each of the Breach Notices and/or Directions; particularising the date of each such Breach Notice and/or Direction; and specifying each and every default, breach or other matter referred to in the Breach Notice and/or Direction upon which the applicant intends to rely at the hearing of the Application; the parties provide disclosure by way of List of Documents and complete inspection by 2nd November 2004; the applicant file and serve on the respondents its affidavits, statements or any reports on which it intends to rely on or before 30th November 2004; the respondents file and serve any affidavits, statements or reports on which they intend to rely on or before 24th December 2004; the applicant file and serve on the respondents any affidavits, statements or reports in reply to the respondents’ material by 17th January 2004; the matter be further reviewed at 2:30pm on 13th December 2004; the parties be at liberty to apply upon two days notices in writing; this application be heard with Application No 610 of 2004; and the costs of and incidental to this Directions’ Hearing be reserved. IT IS ORDERED, BY CONSENT, IN APPLICATION 610 OF 2004 THAT:- the parties be at liberty to apply upon two days notice in writing; the application be heard with Application No 163 of 2004; the costs of and incidental to this Directions’ Hearing be reserved.

R.A.I. MYERS
Specialist Adjudicator

APPLICANT: BODY CORPORATE FOR ISLE OF PALMS RESORT CTS 20860 AND RESPONDENTS: EASTMOND ENTERPRISES PTY LTD AND VARINDI PTY LTD

ORDER

1. The respondent seeks further orders relating to the observation of the formalities associated with the amendments that have sought to be made to Dispute Resolution Application 163 of 2004 and the provision of Further and Better Particulars of certain allegations made in the amended application.
   
2. In considering the application I am conscious of the obligations imposed upon me by section 269 of The Body Corporate and Community Management Act 1997 requiring that I act “with as little formality and technicality as is consistent with a fair and proper consideration of the application...”
   
3. In the premises it seems to me that there will be sufficient compliance with the spirit of the legislation if the applicant’s solicitors lodge with the Commissioner for Body Corporate and Community Management a copy of the facsimile transmission of 25th October 2004 which, in my opinion, sufficiently records the outcome sought by the application and, subject to what I say about the provision of further particulars, the grounds, in detail, on which the outcome is sought for the purposes of section 239 of the Act.
   
4. As to the request for further and better particulars I am of the opinion that:-

(a) if it is asserted in paragraphs 4.1, 4.2(c), 8.1 and 8.2(b) that vehicles have been illegally parked, instances of such illegal parking should be particularised;

(b) if by paragraphs 4.2(b) and 8.2(a) it is asserted that there has been unsupervised use of the pools by children under the age of 12 particulars of those instances should be provided;

(c) if it is asserted in relation to paragraph 4.4(c), 8.5(c) and 11.2(c) that moneys for the hiring of the conference room were in fact received by the respondents particulars thereof should be provided;

(d) particulars of the remedial action that was required to be taken as asserted in paragraph 6.1(b) should be provided in a way similar to which such particulars have been given in paragraph 7(a);

(e) particulars of the matters relevant to the care and management of the building in respect of which there was a failure to report as alleged in paragraph 8.3 should be provided.

5. Objection has also been taken to the admissibility of the report prepared by Bradley Scott Bishop. The report is based upon observations spanning the period from 1:15pm on 4th November 2004 to 8:00am on Monday 8th November 2004. It is therefore said to be irrelevant to whether the respondents were in default on either 1st June 2004 and/or 1st July 2004 being the respective dates upon which they sought to exercise the options to extend the caretaking agreement and the letting agreement respectively.
   
6. I accept the force of what is said about the relevance of the report to questions of default on each of those two days. However, I cannot rule at this stage that the report is completely irrelevant to the issues before me and/or that it is otherwise inadmissible. I am prepared to receive the report and allow questions of its relevance to be addressed upon the hearing of the application.
7. As to my formal orders:-
   

A. By consent it is directed:- (a) that the respondent serve the affidavits of:- Warner Banks; Warner Banks (in response to the statutory declaration of Louise Haynes dated 30th November 2004); Richard Paul Ankers; Amanda Webb; Robin Lesley Stokes and Dell Linkhorn by 5:00pm 20th January 2005; Robert Eastmond by 4:00pm on 21st January 2005; and Graham Kawin by 5:00pm on 4th February 2005. (b) that the applicant serve its material in response to the respondents’ material by 5:00pm on 11th February 2005; (c) that the respondents’ solicitor request that Vitomor Popin provide a statutory declaration, relating to the matters in issue between the parties, to the respondents’ solicitors by 5:00pm on 28th January 2005. (d) that the respondents’ solicitors confirm with the Bar Association of Queensland the terms on which the Bar Mediation Centre will be available for the hearing of this dispute in the week commencing 14th March 2005 and more particularly whether any cancellation fee will be imposed if the current booking is cancelled on 1st March 2005. (e) that the applicant’s solicitor inquire of the transcribing service, that has been retained to provide a transcript of the adjudication, of the terms of their engagement and more particularly whether any cancellation fee and, if so, what fee, would be imposed in respect of any cancellation made on 1st March 2005. (f) that the status of Mr Popin’s evidence and questions relating to both the venue for the adjudication and the transcription services be reviewed in a telephone conference involving both parties and the specialist adjudicator at 2:30pm on Tuesday 1st February 2005. (g) that this application be set down for adjudication before me in the Bar Mediation Centre at 107 North Quay, Brisbane to commence at 10:00am on 14th March 2005. B. I do further order: (h) that the applicant lodge the amended application as provided for in paragraph 3 above within 7 days of this date (i) that the applicant provide further and better particulars of the alleged defaults as provided for in paragraphs 4 (a), (b), (c), (d) and (e) within 14 days of this date.

R.A.I. MYERS
Specialist Adjudicator
24th January 2005

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

APPLICANT: THE BODY CORPORATE FOR ISLE OF PALMS RESORT CTS 20860
AND

RESPONDENT: EASTMOND ENTERPRISES PTY LTD ACN 078 200 165 AND VARINDI PTY LTD ACN 088 750 583

Order

The Adjudicator R A I Myers

2 March 2005

Originating Applications: Applications 0163 of 2004 and 0610 of 2004

IT IS ORDERED in Application 0163 of 2004 that:- The Applicant file and serve an amended Application on or before 4.00pm on 4th March 2005 particularising the grounds on which the Applicant intends to rely and the declaratory orders and remedies that it will seek upon the hearing of the Application set down for 14 March 2005. The Respondent file and serve on the Applicant any written objections to the Applicant’s amended Application referred to in paragraph 1 herein on or before 12.00noon 7 March 2005. The Applicant give written notification to the Specialist Adjudicator and the Respondent of the affidavits, statements or any reports (or which parts or paragraphs of those documents) it intends to rely on at the hearing set down for 14 March 2005 on or before 4.00pm 4th March 2005. IT IS ORDERED in Application 0610 of 2004 that:- Subject to any objection by the Applicant the Respondent file and serve an amended Application to include reference to the Remedial Action Notice breach for both the Caretaking and Letting Agreements dated 30 November 2004 on or before 4.00pm 4th March 2005. The Applicant is to file and serve on the Respondent any written objections to the Respondent’s amended Application referred to in paragraph 4 herein on or before 12.00noon 7 March 2005. If the Applicant and/or the Respondent intends to serve any further affidavits, statements or reports which relate to issues arising from the inclusion of the Caretaking and Letting Agreement Remedial Action Notices issued by the Applicant dated 30 November 2004, then that further material is to be filed and served on or before 4.00pm 10 March 2005. IT IS ORDERED in Applications 0163 of 2004 and 0610 of 2004 that:- The Applications are to be heard the week commencing at 10.00am on 14 March 2005 at Hearing Room 7, Administrative Appeals Tribunal, Level 4, Commonwealth Law Courts, corner Tank Street and North Quay, Brisbane. Costs of both parties be reserved.

R A I Myers Dated
Specialist Adjudicator

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

DISPUTE RESOLUTION APPLICATION NUMBER 163 OF 2004

DISPUTE RESOLUTION APPLICATION NUMBER 0610 OF 2004

APPLICANT: THE BODY CORPORATE FOR ISLE OF PALMS RESORT CTS 20860

AND

RESPONDENTS: EASTMOND ENTERPRISES PTY LTD ACN 078 200 165

AND

VARINDI PTY LTD ACN 088 750 583

ORDER

By Dispute Resolution Application dated 8th March 2004 the Applicant sought appropriate orders and declarations about the times and duties that the Respondents were required to perform pursuant to the obligations imposed under the Caretaking Agreement for Isle of Palms Resort. On 5th October 2004 I was appointed to adjudicate that Application and the Respondents’ subsequent Application referred to in paragraph 3. The Applicant’s Application was subsequently amended in accordance with an Order made by me on 24th January 2005 to include declarations that the Respondents were in breach of both the Caretaking Agreement dated 6th January 1995 and the Letting Agreement, dated 7th March 1997. Specifically declarations were sought that the Respondents had failed to remedy or property remedy breaches particularised in several Notices to Remedy Breach. By a Dispute Resolution Application dated 1st October 2004 the Respondents to the initial application sought declarations that they were not in default of either the Caretaking Agreement and/or the Letting Agreement and sought further declarations that the Remedial Action Notices served by the Applicant were ineffective, void or invalid, that any defaults had been remedied or that the Applicant had waived the necessity for compliance. In addition to the orders touching upon the validity of the contractual arrangements between the Applicant and the Respondents the Respondents sought further orders that they had validly exercised options to renew both the Caretaking Agreement and the Letting Agreement. Orders for specific performance of those agreements or damages in lieu thereof, a mandatory injunction, compelling observation of the terms of the agreement, and declarations that the Body Corporate was acting unreasonably or vexatiously were sought. In effect the matters arising for determination in the cross applications were identical. The Respondents were either in breach of the obligations imposed on them in terms of the Caretaking Agreement and/or the Letting Agreement, in which event the Applicant would have been entitled to succeed on its application. Alternatively, in the event that the breaches had not been made out, the Respondents would have been entitled to the relief sought by them or to at least an order that there were no defaults on their part affecting the subsistence of either the Caretaking Agreement or the Letting Agreement. The Applicant has now elected to abandon that part of its application whereby it sought declaratory relief in relation to the Notices to Remedy Breach. The Applicant acknowledges that it is bound by both the Caretaking Agreement and the Letting Agreement and it has renewed them in accordance with the options exercised by the Respondents. In the premises, in terms of the Applicant’s prayers for relief, whereby it sought declarations that the Respondents were in default of the Caretaking Agreement and the Letting Agreement I dismiss the application. It follows from the Applicant’s failure to prosecute the Application in respect of the alleged defaults that the Respondents are entitled to a declaration that neither Eastmond Enterprises Pty Ltd nor Varindi Pty Ltd are or were at any material time in default of the Caretaking Agreement dated 6th January 1995 and the Letting Agreement dated 7th March 1997. The Applicant having acknowledged the Respondents’ exercise of the option to extend both agreements and having acknowledged that it will be bound by the terms thereof, the occasion to consider relief by way of specific performance and/or by way of mandatory injunction does not arise. There remains on foot only the application for a declaration that on a true constructions of the Caretaking Agreement:- (a) the Caretaker is required to be available on site at all times, twenty four hours a day, seven days per week, and (is required to) respond to residents’ calls within a reasonable period of time; and (b) in accordance with clause 3(m) of the Caretaking Agreement the Caretaker is required to perform those tasks particularised in the document entitled “Specific Caretaking Duties” dated 13th October 2003. I direct that the constructions issue be heard on 14th March 2005 at the Administrative Appeals Tribunal building, North Quay, Brisbane, to commence at 10:00am. I will reserve all questions relating to the costs of both applications for argument and determination at the conclusion of the forthcoming hearing.

.................................................
R.A.I. MYERS
Specialist Adjudicator
11th March 2005

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

APPLICANT: THE BODY CORPORATE FOR ISLE OF PALMS RESORT CTS 20860

AND

RESPONDENTS: EASTMOND ENTERPRISES PTY LTD ACN 078 200 185

AND

VARINDI PTY LTD ACN 088 750 583

REASONS FOR DECISION

1. By an amended application filed on 7th March 2005 the abovenamed applicant sought Orders that:-

(a) the Caretaker be available on site at all times, twenty-four hours a day, seven days per week, and respond to residents’ calls within a
reasonable period of time; and

(b) in accordance with clause 3(m) of the Caretaking Agreement, the Caretaker undertake the permanent policies and procedures nominated in a document entitled “Specific Caretaking Duties” being exhibit
“LH32” to the Statutory Declaration of Louise Ann Haynes, sworn on 30th November 2004.

2. The first prayer for relief was modified during the course of the hearing on 14th March 2005 to the extent that the applicant sought an order that:-
All residents be provided with the telephone number of the caretaker’s residence in order that it may be called or, in the absence from site of the caretaker, provision be made for diversion to another telephone or that a mobile telephone number be provided to enable contact to be made with the caretaker.

3. The document entitled “Specific Caretaking Duties” provided as follows:-
A. Daily duties

Area

Pools, spa, toilets and showers

Duties
1.1 Vacuum front and back pools & spas
1.2 Clean out skimmer boxes
1.3 Check pool filtration equipment and chemicals
1.4 Add chemicals to pool if needed
1.5 Collect any rubbish from pool areas and empty bins
1.6 Clean toilets (including walls and floors)
1.7 Check light globes and replace if faulty
1.8 Check and replenish toilet rolls, soap and papers towels
1.9 Clean and maintain pool furniture (including sun lounges)
1.10 Ensure that pool areas are kept lit until gates are locked
1.11 Open poo1 gates and toilets at 7:00am
1.12 Lock pool gates and toilets at 9:00pm

Area

BBQ area
(to be completed by 11:00am)

Duties
2.1 Sweep area clean and empty all rubbish bins
2.2 Clean off all fats and greases from barbeque plates and facings
2.5 Clean and maintain all tables and chairs
2.6 Clean all fats and other food or drink spills from payers

Area

Grounds

Duties

3.1 Remove weeds in common garden areas
3.2 Water (by hand if necessary) all garden areas located on the common property
(subject to any prevailing water restrictions imposed by Gold Coast City
Council)
3.3 Check and replace garden light globes.
3.4 Monitor trolley collection points and contact Cobs and Woolworths
supermarkets when not collected daily.
3.5 Monitor garbage disposal points each morning before collection to ensure that
rubbish is kept within bins.
3.6 Remove bins from roadway within half an hour of collection and replace at
disposal points in tidy and safe condition.
3.7 Maintain all common area gardens and driveways in a safe and tidy condition
3.8 Promptly report if any body corporate asset is in an unsafe or dangerous
condition.

Area

By-laws

Duties
4.1 Circuit the grounds by foot or by bicycle:

(a) at least 5 times daily between the hours of 8:00am and 9:00pm on weekends and during school holidays; and

(b) at least 3 times daily between the hours of 4:00pm and 9:00pm on all other days
to police the observance of the by-laws (particularly with regard to children playing on common property, underage children swimming unsupervised and illegal parking).

4.2 Keep a written log of any by-law contravention observed (including the nature of the contravention, the date and time of the contravention, the place of the contravention and the name and address of the person or persons committing the contravention) (called “the contravention log”).

4.3 Provide the body corporate manager with the contravention log by
11:00am each Monday.

Area

Security

Duties

5.1 Maintain security of resort at all times by observing front gate surveillance tapes of vehicles entering the resort and taking action when necessary.

5.2 Read security log book and follow up any reported incidents.

B Weekly duties

Area

Pools, spa, toilets and showers

Duties

6.1 Clean pool walls and edgings with brush

6.2 Clean pool & spa filters

6.3 Pressure water clean pebblecrete areas around pools & spas

6.4 Remove cobwebs from toilet walls and ceilings

Area

BBQ Area

Duties

7.1 Pressure clean grease and others spills from payers

Area

Mail boxes

Duties

8.1 Remove mail from mailboxes of units in letting pool.

8.2 Return all mail rejected by residents to postman and keep tidy

Area

Volley ball court

Duties

9.1 Remove weeds growing through sand and surrounding areas.

9.2 Maintain, rake and replenish sand when necessary.

Area

Tennis Courts

Duties

10.1 Clean surfaces and remove weeds in concrete joints

10.2 Check condition of nets, lights and fences

C. General

Quotations

Duties

11.1 When requested to obtain quotes to do so within 21 days of request

By-laws

Duties

4. In the course of his submissions Counsel for the Applicant made reference to a letter written by the respondents to the applicant’s then solicitors responding to the enumerated “Specific Caretaking Duties”. That letter was exhibit “LH 43c” to Mrs Haynes’ affidavit. In effect that letter put in issue only duties:-
   

1.1 Open pool gates and toilets at 7:00am

1.12 Lock pool gates and toilets at 9:00pm

3.2 Water (by hand if necessary) all garden areas located on the

common property (subject to any prevailing water restrictions

imposed by Gold Coast City Council).

4.1 Circuit the grounds by foot or by bicycle:

(a) at least 5 times daily between the hours of 8:00am and 9:00pm on weekends and during school holidays; and

(b) at least 3 times daily between the hours of 4:00pm and 9:00pm on all other days

to police the observance of the by-laws (particularly with regard to

children playing on common property, underage children swimming

unsupervised and illegal parking).

4.2 Keep a written log of any by-law contravention observed (including the nature of the contravention, the date and time of the contravention, the place of the contravention and the name and address of the person or persons committing the contravention) (called “the contravention log”).

4.3 Provide the body corporate manager with the contravention log by 11:00am each Monday.

5.1 Maintain security of resort at all times by observing front gate surveillance tapes of vehicles entering the resort and taking action when necessary.

5. The respondents in exhibit “LH-43c” otherwise accepted that the “Specific Caretaking Duties” enumerated in exhibit “LH-32” where otherwise in accordance with the obligations imposed by the Caretaking Agreement save for non controversial and relatively minor reservations in respect of the use of the words “pressure water” (clause 6.3), “pressure” (clause 7.1), the ability to effect the relationship with owners already governed by “Appointments to Manage” (clause 8.1) and the costs associated with the replenishment of sand, as provided for by clause 9.2, and clause 11.1, which was ultimately modified by consent to provide for quotes to be obtained within a reasonable time.

6. I will deal with each of the issues in turn.

The alleged obligation of the caretaker to be available on site twenty-four hours a day seven days per week and to respond to residents’ calls within a reasonable period of time.

7. The applicant in contending that the Catetaking Agreement between the patties (exhibit “LI-1-4” to the affidavit of Mrs Haynes) required the onsite presence of the Caretaker for twenty-four hours per day, seven days per week, placed reliance upon clause 3 of the Agreement prescribing the Manager’s duties. I accept the applicant’s Counsel’s submissions that the enumerated duties are inclusively defined. He seeks to gain from that an implied term that onsite personal attendance is required.

8. The applicant’s Counsel relies upon the general words at the beginning of clause 3 to “colour” the general obligation imposed upon the manager to, effectively, not leave the site. The general obligation is imposed by the following words:-

“The Manager agrees to perform or procure the performance of the tasks and duties consistent with the position of Manager to a holiday resort (used in part for residential purposes) and without limiting the generality of this provision the Manager undertakes to perform the following particular duties...”

It seems to be common ground that one cannot read into any of the enumerated duties a requirement for personal presence on a twenty-four hour basis.

9. I should say that some of the enumerated duties, for instance sub clause (k), does adopt the use of the phrase “at all times”. However upon a true construction of that clause:-

“At all times to ascertain and be aware of the general condition of the building improvements and Common Property and all machinery, plant and equipment and inform on request about such general condition.”

it is clear that the words “at all times” cannot be construed as an obligation to maintain any constant watch to determine any change in the general condition of buildings or equipment. The identical phrase is used in sub clause (y) and (z) but does not, in my opinion, imply a need for continuous vigilant inspections.

10. The applicant’s Counsel relied upon the description of the property as “a holiday resort” as giving colour to the extent of the Manager’s obligation to maintain a physical presence on site. He admitted that the position would be different if the premises were used for only “residential purposes” as opposed to “holiday letting” although perhaps more emphasis was placed on this aspect of the matter in dealing with issues of time and frequency of patrols of the resort and the issue of locking and unlocking pool gates.
11. I cannot see that the mere fact that premises are used for holiday purposes would lead to the implication of a term requiring the permanent physical presence of the Manager of the resort or a properly delegated agent of the Manager.
    
12. The applicant also sought to rely upon the level of the Manager’s remuneration as giving rise to an implication of “onsite presence at all times”. In that respect reliance was placed upon the report of Barry Turner and Dell Linkhorn (exhibit “LH-63” to the affidavit of Mrs Haynes) and the engagement of Mr Poppin, a resident of the resort, for forty six hours per week in respect of the performance of maintenance work.
    
13. I do not accept that the material supports an implication that on site physical presence is required. In this respect it does seem to me that the report of Turner and Linkhorn is of some assistance as it records:

“ . .as the caretakers are responsible for the Complex twenty-four hours per day seven days per week (including all public holidays), they must be available or contactable at all times.”

14. To the extent that the parties rely upon Turner and Linkhorn as having some expertise in the area I can infer only from the use of the disjunctive “or” in the requirement to be “available or contactable” that onsite physical presence is not required.
15. As I have noted, a concession to this effect was made in the course of submissions to the extent that it was acknowledged that:

“the applicant’s concerns (would) be sated if all residents (were) provided with the telephone number of the caretaker’s residence... so that (the caretaker could) be telephoned and, if no one (was) on the site at the time, either a mobile number.., be provided or (the) number (of the residence)... be diverted to a mobile telephone which is obviously to be switched on so that contact is not lost...”

16. I cannot see that the Caretaker Agreement imposes any obligation to provide either the telephone number of the caretaker’s residence or a mobile number that will respond immediately to any call initiated by a resident of the complex. One could well imagine irresponsible residents initiating calls out of working hours to make simple maintenance complaints that could be adequately dealt with at a more appropriate time.
    
17. I do not rely upon this speculation in rejecting the construction of the general words of clause 3 as contended for by the applicant. In my opinion a necessity to be “contactable” does not imply that the Manager is to be immediately available on the other end of a telephone.
    
18. The applicant seeks to support its argument for full time onsite presence by relying upon the collateral letting deed (exhibit “LH-5” to Mrs Haynes Affidavit) which requires the resident manager “to reside at all times in the building” and to be “able to communicate competently and effectively with all residents, owners and guests.”
    
19. I accept the submission that the obligations imposed by the letting deed would require that resident’s calls be responded to within a reasonable time. I cannot accept that the letting deed imposed an obligation to maintain a full time physical presence on site.
20. As I have said, there can be no doubt that the Manager has an obligation to be “contactable” twenty-four hours per day seven days a week. It is common ground that the respondent maintains “a night answering service”. Having determined the priority of any particular call the night answering service is able to make immediate contact with the resident manager who is able to respond.
    
21. In my opinion the maintenance of the night answering service discharges the obligation imposed in terms of the caretaking agreement. That such a service might conceivably fulfill the Manager’s obligation was acknowledged by the applicant’s Counsel early in the hearing where it was said (at p16L34):-

“It doesn’t seem to be an issue that there is a duty to be available but whether or not the scope of the extent of that duty requires a physical presence or simply a night answering machine.”

22. I should add that I do not consider that a “machine” as opposed to a “service” would fulfill the obligation and I do not treat counsel’s statement as a concession going to that length. Certainly the respondent does not contend that the provision of an answering machine would fulfill its obligation to be “contactable”.
    
23. The affidavit evidence satisfies me that if either an outside caller or an occupier of a lot within Isle of Palms calls the Isle of Palms listed telephone number, outside reception hours, that such a call is automatically connected through to an entity known as Nitel which provides an after hours telephone answering service.
    
24. I am also satisfied that if a person who is intending to enter the resort or a person who is within the resort, and uses the PABX system, presses the digit “9”, outside reception hours, then again that person is automatically put through to Nitel.
25. I am satisfied by the evidence that the maintenance of an office during the times prescribed by the Caretaking Agreement and the after hours telephone answering service, provided by Nitel, discharges the respondent’s obligation to be contactable within the terms of the Caretaking Agreement.
    
26. The material clearly establishes that the resident manager on duty is either available on a telephone located within the Manager’s residence or otherwise on a mobile telephone carried by the resident Manager twenty-four hours a day seven days per week.
27. The applicant makes an alternative submission that the requirement to provide all residents with the telephone number of the caretaker’s residence or, in the event that the respondent is not within the residence or has not diverted the telephone to another number, to provide all residents with the number of a mobile telephone at which the resident manager will always be contactable is a reasonable direction in respect of a procedure to be observed in the performance of the manager’s tasks and duties requiring compliance, albeit that the costs associated therewith would have to be borne by the Body Corporate.
    
28. For the reasons already given I do not consider that a direction to provide a private telephone number to all residents (which of necessity includes all holiday makers) of the complex could constitute a “reasonable direction” within the meaning of clause 3(m) of the Caretaking Agreement. Certainly the reasonable requirement would be that the manager be “contactable”, particularly in the event of an emergency. As I say this requirement is satisfied by the provision of the “Nitel” Service.
29. In the premises I decline to make any order that “the Caretaker will be available on site at all times twenty-four hours a day seven days per week and respond to residents’ calls within a reasonable period of time” and/or that all residents be provided with a telephone number on which the resident manager will be immediately contactable.

30. In this respect I dismiss the applicant’s first prayer for relief.

Obligation to open pool gates and toilets at 7:00am and to lock them at 9:00pm

31. It is common ground that the use of the pool is restricted to the hours between 7:00am and 9:00pm. It is the applicant’s contention that:-

“It is inherently necessary... that a resort used for holiday letting purposes, that the caretaker go the extra distance and lock up the pool and the toilets when the pool ceases operation. There arc by-laws which govern the use of the pool. There is a duty of care issue concerning the use of the pool. While no one argues that parents don’t bear responsibility for their children, the Body Corporate still has a duty of care as the occupier.”

32. The applicant contends that it is part of the caretaker’s obligation, in terms of the Caretaking Agreement, to lock and unlock the pool at the stipulated times. It is argued that locking and unlocking the pool is effectively policing or enforcing the observance of bylaws. The applicant relies upon an implied duty to lock and unlock the pool (and the toilets) arising pursuant to one, other or both of clause 3(s) and 3(y) of the Caretaking Agreement.
    

33. Clause 3(s) of the Caretaking Agreement provides:-

“The Manager shall without limiting the generality of his obligations pursuant to this agreement, keep the following areas in a clean and neat condition:-

(i) All public foyers and stairways and utility areas;
(ii)All paved areas, grounds, lawns, gardens, nature strips, car parking and drive-way areas;
(iii)All public toilets and showers and any associated areas; and
(iv)Barbeque areas, pool areas and associated furniture.”

34. Clause 3(y) of the Caretaking Agreement provides:-

“The Manager shall at all times ensure that the pools and spas and
associated equipment on the Common Property are cleaned and maintained to the highest standard (the cost of all chemicals, repairs and replacements to be to the Body Corporate) and that such cleaning and maintenance conforms to all local government and other relevant bodies regulations, be responsible for the proper operation of pumps and filters connected to the pools and spas, for the daily cleaning of the pools and spas and for ensuring that the pool and its surrounds are clean and hygienic.”

35. For reasons which are not altogether clear to me it is the applicant’s contention that the implied obligation to lock and unlock the pool gates arises in respect of properties available for holiday letting as opposed to residential properties. It seems to be implied by the applicant that in residential premises residents will observe pool operating hours whereas in resorts (particularly those located in Queensland) residents will not comply with operating hours and that the only way to enforce by-laws and like restrictions is to lock the pool gates.
    
36. I have carried out extensive investigations both within Australia and overseas to determine whether any distinction is drawn between residential premises and those available for holiday letting whether operating as a resort or otherwise. My investigations do not lead me to find that the distinctions sought to be made by the applicant has any support whatsoever.
37. It seems to me that the applicant is entitled to rely upon its bylaws and other regulations in restricting the times during which the pool may be used. It is certainly the respondents’ obligation to police such restrictions and to order, from the pool area, anyone using it out of hours. However, it cannot be implied into those obligations a duty to lock the pool gate.
    
38. The applicant contends that the implication of an obligation to lock and unlock the pool arises in consequence of the restriction on operating hours. As I have said I do not consider that the imposition of operating hours can, without more, give rise to an obligation to lock and unlock the pool.
    
39. As the applicant contends not only is there a restriction in pool operating hours. There are additional restrictions on the use of the pool by children below the age of twelve years, unless they are accompanied by an adult and a restriction on the use of the pool by occupiers, invitees or guests when naked.
    
40. The applicant contends that the only way to enforce restricted operating hours is to lock the pool. It is probably conect, as the respondents contend, that anyone wishing to swim out of hours will simply climb the fence. Whether this be right or not, to suggest that restricted operating hours gives rise to an obligation to lock the pool gates in tantamount to suggesting that a representative of the Manager was required to be continuously present at the pool to veri’ the age of pool users and to ensure that those under twelve were accompanied by an adult and/or to be continuously present to ensure that pool users were adequately clothed.
    
41. Although it is clearly part of the Manager’s obligation to police and ensure compliance with restrictions of the kind referred to in the previous paragraph the obligation can require no more than to be vigilant in carrying out the duties imposed by the Caretaking Agreement, to be contactable twenty-four hours per day seven days per week, to respond appropriately when a breach of by-laws or rules is otherwise detected or reported and to respond to any breach in the way provided for by clause 4.2 of the document entitled “Specific Caretaking Duties” to which further reference is made hereunder.
42. I cannot read into the Caretaking Agreement any implied obligation to lock the pool gates. Photographs of the pool gates formed part of the original application. It is clear that the gates are fitted with the child safety device generally required by local authorities. In my opinion the provision of such a device discharges any duty of care that the Body Corporate might have to residents and their guests. In my opinion the law does not impose any higher duty between the hours of 9:00pm and 7:00am as opposed to 7:00am and 9:00pm.
43. In the event that I am not prepared to find that there is an implied term requiring the respondent to lock and unlock the pool gates the applicant contends that the requirement to do so is a “reasonable direction.., in and about the administration and management of the Building and the performance by the Body Corporate of its lawful obligations and duties” within clause 3(m) of the Caretaking Agreement albeit that the task is performed at the applicant’s cost.
44. Again I cannot see that this contention is made out. I have seen no evidence that would lead me to conclude that “administration and management” of the resort and/or discharge of the “lawful obligations and duties” of the Body Corporate necessitate that the pool gates be locked outside of operating hours let alone that a direction given to the Caretaker in this respect could be considered to be “reasonably” made.
45. Again I can find no substance in the applicant’s contention and I dismiss the relevant prayer for a direction that the respondents or either of them perform the duty enumerated in clause 1.11 and 1.12 of the “Specific Caretaking Duties” document.

Obligation to water all garden areas located on the common property

46. Clause 3(t) of the Caretaking Agreement provides that:-

“The Manager shall maintain all common garden and lawn areas to a standard appropriate to a superior holiday resort. Garden duties required shall include, without limiting the generality of the requirement for maintenance of gardens:

(i) mow all lawns and trim all ledges;

(ii) remove all weeds and prune all shrubs and trees;
(iii) remove undergrowth from under trees and shrubs;

(iv) remove all clippings and prunings from the Building;
(v) fertilise the lawns and gardens;
(vi) water the garden areas located on the Common Property;
(vii) spray plants with approved formulas to eradicate garden

pests;
(viii) replace dead shrubs and flowers at the cost and expense of

the Body Corporate.”

47. The obligation imposed by clause 3.2 of the document entitled “Specific Caretaking Duties” does no more than to restate the specific obligation imposed by clause 3(t) of the Caretaking Agreement. In my opinion there can be no doubt that the respondent has an obligation to water the garden areas in order to maintain them to the requisite standard.
    
48. In its response to the “Specific Caretaking Duties” the respondent in its letter of
    24th October 2003 contended that a report from Amanda Webb, commissioned by
    the Body Corporate Committee, had concluded that the nature of the soil on Isle of Palms was such that watering was “a pointless exercise” and “a complete waste of water”.
    
49. It would appear that the report had been acted upon by the Body Corporate to the extent that it was resolved on 1st September 2003 that “rejuvenation of the gardens be deferred until” receipt and consideration by the Body Corporate of quotations in respect of such rejuvenation.
    
50. The respondent in summarising its position said “In summary in the absence of any other expert independent evidence there is little option but to accept that evidence. In accepting that evidence no amount of watering is going to improve the standard of the gardens. Indeed as the palm trees are allowed to continue their growth all other plants will slowly choke and die.”
    
51. The issue was further developed in argument before me. The respondents seemed to resile from the position that there was no obligation to water the gardens arising from the inability of the soil to retain water. Rather the respondents’ contention seem to be that because the gardens occupied a relatively significant area the obligation imposed by clause 3(t)(vi) necessitated the use of a sprinkler system which may or may not have been in working order. To this extent it followed that the obligation to water “by hand if necessary” was unreasonable.
    
52. I expressed the view that the obligation imposed by clause 3(t)(vi) was clear. The respondents did not resist my preliminary view. At the end of the day the parties agreed that I should not make any further determination in relation to clause 3.2
    of the “Specific Caretaking Duties”. It seemed to be accepted that the respondents’ obligation could be discharged by activating the sprinkler system.
    
53. The patties agreed to an inspection of the sprinkling system. A determination was to be made whether the system was in need of repair to bring it to an operable standard. When the system was operable the respondent would water the garden areas. That seems to me to be the respondents’ obligation notwithstanding the views expressed by the landscape architect.
    

Obligation to circuit the grounds by foot or by bicycle five times daily between 8:00am and 9:00pm on weekends and school holidays and three times daily between 4:00pm and 9:00pm on all other days

54. In their response of 24th October 2003 to the “Specific Caretaking Duties” the respondents sought the applicant’s permission to conduct their movements around the resort, associated with their obligation to police the bylaws, by electric golf buggy rather than “by foot or by bicycle”. This procedure was accepted by the applicant and is not an issue now arising for my determination.
    
55. The evidence established that throughout the course of any given day the manager by himself his servants and agents were “circuiting” the grounds on a regular basis, at least until 6:00pm on weekdays and 5:00pm on Saturdays and Sundays. In effect, as it was put by the applicant’s Counsel, on the assumption that there were regular circuits of the resort until 6:00pm on weekdays and 5:00pm on weekends, it was reasonably required in terms of clause 3(b) of the Caretaking Agreement that the Caretaker complete a further circuit of the Resort on the electric golf buggy at or about 9:00pm.
    
56. I cannot find any implied obligation arising in terms of the Caretaking Agreement for such a circuit of the resort to be performed. The Manager’s obligation is to be “contactable” twenty-four hours per day seven days per week. The Manager is in a position to react immediately to any breach of the by-laws notified to it, I fail to see that one or perhaps even two circuits of the resort between the hours of say 5:00pm and 9:00pm would be likely to lead to any detection of a breach of the bylaws or to act as a deterrent in respect of any such breach.
    
57. It is not contended that there is any obligation, either express or implied, for there to be any circuit of the resort between the hours of 9:00pm and 8:00am. There is nothing that suggest to me that breaches of bylaws would more likely be performed in the hours between 5:00pm and 9:00pm rather than in the hours between 9:00pm and 8:00am. In my opinion the applicant’s demand for a circuit or circuits of the resort between the hours of 5:00pm and 9:00pm as encapsulated in clause 4.1 of the document entitled “Specific Caretaking Duties” is unreasonable.
    
58. In the light of my conclusion that the requirement is unreasonable it follows that it cannot constitute a “reasonable direction” within the meaning of that term as it is used in clause 3(m) of the Caretaking Agreement, giving rise to an obligation on the part of the respondent to perform the task albeit at a cost to the applicant.
    
59. I should record that the applicant did seek to draw some distinction, in contending for an obligation to conduct a “circuit” of the resort out of business hours, between a complex used principally by permanent residents and a holiday resort. Again I find no relevant distinction between the two in terms of the obligation to “police” the bylaws whilst acknowledging that perhaps more out of hour’s activity is to be anticipated in a holiday resort. This latter fact may well explain the necessity for the Manager to be contactable for twenty-four hours per day, seven days per week — an obligation which is conceded by the respondents.
    

Obligation to keep a written log of by-law contrayentions and provide it to the Body Corporate Manager by 11:00am each Monday

60. Clause 3(e) of the Caretaking Agreement provides that:-

“The Manager shall keep a daily log of all relevant matters arising under this clause, and produce the log to the Body Corporate representative upon request.”

61. I am satisfied that such a log should contain reference to by-law contraventions in the light of the Manger’s obligations to “police the observance of the by-laws” (clause 3(b)) and “to report to the Body Corporate concerning the performance of the duties of the Manager” (clause 3(c)).
    
62. Although in its initial response to the “Specific Caretaking Duties” document the respondents appear to have refuted the obligations sought to be imposed by clauses 4.2 and 4.3 events would seem to have overtaken what might have appeared to have been a prima fade dispute.
    
63. I find that the requirements imposed by clauses 4.2 and 4.3 of the “Specific Caretaking Duties” documents are reasonable in terms of the Caretaking Agreement. As much seems to be admitted by the respondents who are discharging the obligations imposed by those clauses. It seems to me that I am not required to determine any issue arising out of the impositions of clause 4.2 and clause 4.3 of the “Specific Caretaking Duties” documents.
    

Obligation to maintain security by observing front sate surveillance tapes and taking action when necessary.

64. It was the applicant’s contention that clause 3(a) of the Caretaking
Agreement which imposed upon the Manager an obligation to:-

“...supervise the ear parking having regard to the entitlement of
proprietors to use of car parking spaces”.

meant that the duty to observe the surveillance tapes imposed by clause 5.1 of the “Specific Caretaking Duties” document was, in the premises, reasonable.

65. As it transpired such surveillance as there was appeared to have been recorded to a hard drive for a seven day period. A CD was produced of the surveillance and on certain days it was said that the committee had access to it. It appears that the real relevance was to detect property damage occasioned by vehicles entering and leaving the resort.
    
66. The applicant’s Counsel identified a difficulty about determining the time when damage was occasioned although it was ultimately conceded that the obligation purportedly imposed by clause 5.1 of the “Specific Caretaking Duties” document “doesn’t seem to be an issue”.
    
67. I must say that the obligation purportedly imposed by clause 5.1 of the “Specific Caretaking Duties” document does seem to me to be onerous and does seem to me to go well beyond the obligations imposed by clause 3(a) of the Caretaking Agreement and, for that matter, clause 3(d) thereof.
    
68. Similarly I would not have thought that such a requirement could be “reasonably” directed in terms of clause 3(m) of the Caretaking Agreement. However, in the light of the approach adopted by both the applicant and the respondents I will make no determination in relation to the matter.
    
69. The parties sought to make submissions as to an appropriate form of orders arising from my determination and in respect of costs. Providing it meets the convenience of both patties I am inclined to take submissions in relation to both issues in my chambers at 9:00am on Friday 6thi May 2005.
    
70. I am willing to receive written submissions in relation to those matters before that date if either party seeks to place such written submissions before me. Any written submissions should be exchanged.
    

R.A.I. MYERS
Specialist Adjudicator

28th April 2005