West Court [2004] QBCCMCmr 589 (24 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0401-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13728
Name of Scheme:	West Court
Address of Scheme:	57 Collins Street CLAYFIELD QLD 4011

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

Ann Margaret FORWARD and Kevin Ewart FORWARD, as the co-owners of Lot 1,

I hereby order that – a) Unless the body corporate committee resolves to engage a different service provider for the repair or replacement of the cracked driveway slab, the committee must within three (3) months of the date of this order engage the services of Guildcraft at a cost of $2,400 for the repair work, and levy owners a special contribution sufficient to meet the cost. b) However, the above order is subject to the body corporate in general meeting resolving within the three (3) month period, to extend the work to a repair of the whole of the driveway, in which case it may engage a different service provider for the work and the above order will not apply.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0401-2004

"West Court" CTS 13728

The applicants, Ann and Kevin Forward of Lot 1, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

1.	An order of a departmental adjudicator under s276(1)(b) of the Act requiring the Body Corporate to exercise its rights and powers or the performance of its duties under the Act in respect of carrying out the express wish of the owners to –
a)	take steps necessary to remove R Jackson P/L as the Body Corporate Manager.
b)	have repaired the damage to the footpaths and driveway.
c)	ensure that the repairs to the roof (already paid for) comply with accepted building standards.

2.

The appointment of an Administrator under s276(4)(b) of the Act to assist the enforcement of the order described above. The administrator would necessarily have to perform the obligations of the Body Corporate Manager until the appointment of a competent Body Corporate Manager given the inability or refusal of the secretary of the committee and the appointed Body Corporate Manager to facilitate authoritative meetings and to deal with issues in the best interests of owners.

By email dated 1 November 2004, the applicants stated that at the annual general meeting held on 29 October 2004, the services of R Jackson Pty Ltd as Body Corporate Manager had been terminated and therefore Orders 1(a) and 2 are no longer necessary. The orders now sought are therefore –

"An order of a departmental adjudicator under s276(1)(b) of the Act requiring the Body Corporate to exercise its rights and powers or the performance of its duties under the Act in respect of carrying out the express wish of the owners to –

a)	have repaired the damage to the footpaths and driveway.
b)	ensure that the repairs to the roof (already paid for) comply with accepted building standards."

JURISDICTION:
This is a dispute between owners (the applicant co-owners of Lot 5) and the body corporate (the respondent) concerning the repair of two areas of common property, namely a cracked driveway and cracked footpath, and also obtaining expert opinion as to the integrity of roof repairs carried out in mid-2003. These are matters that fall within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and therefore may be determined by an adjudicator.

General powers of an Adjudicator in making an order:
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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (committee), and to all other owners, with an invitation to each to respond to the matter of dispute raised in the application. Submissions were received from the following other owners: S Wardle of Lot 3; and K Radke of Lot 5. The applicant viewed the submissions and subsequently lodged a reply (see sections 244 and 246 of the Act).

In regard to the cracked footpath, at the annual general meeting held on 29 October 2004 it was resolved by the body corporate (on a vote of 5 in favour with no dissent) that it "approve work on the footpath as required". However, despite this resolution the applicants have asked that the matter be viewed and determined in conjunction with the (following) order sought for the driveway cracking to be repaired, on the basis that concurrent repairs to both will be "carried out more uniformly and will be cheaper than having them done separately."

In regard to the cracked driveway, the applicants have submitted a copy of an engineer’s report by CLA Consultants dated 5 August 2002 which recommends immediate rectification for concrete cracking of the footpath and driveway. The report refers to "trip points" created by the cracking. The damage is thought to have been caused by trees located close to the damaged areas, and these have now been removed.

The applicants have also submitted photographs showing marked cracking the full length of a driveway slab lying laid between the spoon drain and the building line.

However, while a motion for the repair of the footpath was passed at the recent annual general meeting, a similar motion to "approve driveway work as required" failed on a vote of 1:4. This decision, the applicants say, is at odds with the previous view of a number of owners. There is no submission against the repairs.

In regard to the inspection of roof repairs, there is a history to the matter involving the previous Body Corporate Manager, R Jackson Pty Ltd. There were two tenders for the work, evidently obtained by R Jackson Pty Ltd ("R Jackson"),being $14,850 from Quality Roof Restorations and $16,291 from Shayne Stein Roofing. At an extraordinary general meeting held on 16 May 2003 the former tender was accepted on a vote of 3:0. Information supporting the application is that the latter tenderer did not hold a valid occupational licence for such a job and there was a connection between the two tenderers, suggesting therefore there was no valid competition in the tender process. The work was done over 6 weekends and there is a suspicion that the steel used was not premium grade.

At a committee meeting held on 20 April 2004, it was resolved by all the four members present that "...we engage a suitably qualified Civil and Structural Engineer to conduct an inspection of the roof to identify the materials and whether or not the roof has been installed satisfactorily and to specifications."

In a submission by Ken Taylor (secretary) and Susan Wardle (Lot 3), they state that as the matter is now in the hands of the Building Services Authority ("BSA") there is no need for an engineer report on the roof. They state that the secretary wrote to the BSA and on its advice participated in a mediation session with the builder, Ray Wilkie of Queensland Roof Restorations, in an attempt to resolve the issue. The attempt failed and the secretary lodged an official complaint with the BSA. If BSA finds that remedial work is necessary to the roof then either the builder will do it voluntarily or the work will be carried out under the Authority’s insurance arrangements (and the builder prosecuted).


DETERMINATION:
"West Court" was registered as a building units plan (now termed a building format plan) on 26 July 1974 and comprises six lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").


Footpath repairs:
As the body corporate has resolved to have the footpath repaired at the recent annual general meeting, there is no longer a dispute and therefore no order is necessary. I would remind the body corporate committee that section 101(2) of the Act requires that "...the committee must put into effect the lawful decisions of the body corporate." That is, the committee must proceed to have the footpath repairs carried out within a reasonable time (but see under next heading).

Driveway repairs:
The engineering opinion expressed in the report of CLA Consultants, the obvious state of the cracking evidenced by the photographs submitted, the submission and distribution of this application, and the failed resolution, all show that the owners must be taken to have knowledge of the cracking and the possibility of a person incurring an injury through stumbling over the crack itself or the unevenness of the slab either side of the cracking.

To ignore the problem, or defer repair because of financial considerations, is in the circumstances very unwise and potentially expensive for each owner (who have unlimited liability for the debts of the body corporate) if the insurer were to deny liability on the basis of the body corporate’s knowledge and failure to repair. For section 109 of the Standard Module imposes on the body corporate the duty to "maintain common property in good condition " While minor cracking posing no danger could be still regarded as meeting the standard of good condition quite obviously the cracked portion of driveway does not.

If the trees were the problem, then repair now with the trees removed can be a more permanent thing – it may be that the soil is largely clay and/or insufficient reinforcing was used. I note that the same service provider for the footpath repairs, Guildcraft, submitted the lowest tender ($2,400) for the repair of the driveway. This may be a happy coincidence as the same service provider will ensure consistency. I note that there is a comment to the failed motion in the meeting minutes, saying "Advice to be sought from new Body Corporate Manager on the whole driveway" – this appears to indicate a desire to consider repair/replacement of the whole driveway` rather than the damaged half.

My order must be for the body corporate to repair/replace the damaged part of the driveway. To avoid delay it is also preferable that my order be the authority for the committee to both engage a service provider and levy a special contribution to meet the cost. I have therefore ordered that the body corporate must engage Guildcraft to repair the damaged driveway but have qualified the order such that if the committee wishes to engage a different service provider it may do so. Also, as I have allowed three months for the work, this will give owners the time to meet and decide on extending the repair/replacement work to the whole driveway with the same service provider or another.


Expert inspection of roof repairs:
All owners, not just the applicants, are concerned as to the state of the roof. Under the heading "Application and Submissions" I have reported the actions taken by Ken Taylor through the BSA to have the roof brought up to standard. Prior to issuing this order, I have caused staff to inquire of both Taylor and the BSA to determine the current status of the complaint.

Unfortunately the builder has not complied with the initial instruction of the BSA, however the matter will be pursued against him. I agree with the submission of Taylor and Wardle that the matter should be followed through the BSA which is in the best position to have identified faults remedied. Accordingly I make no order in this regard.