Sunny Ridge Gardens [2004] QBCCMCmr 67 (3 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0534-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19295
Name of Scheme:	Sunny Ridge Gardens
Address of Scheme:	470 Pine Ridge Road COOMBABAH QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Lillias Murray, the co-owner of lot 29

I hereby order, by consent, as follows: 1. The applicant, Lillias Murray (Murray) and the body corporate agree that a 400mm x 400mm agricultural drain/trench shall be constructed against the southern rear wall of Murray’s lot extending from the western edge of Murray’s courtyard to the eastern edge of Murray’s garage. 2. Murray and the body corporate agree to contribute 50% each to the cost of construction up to a maximum of $1,000.00, with any costs in excess of this amount being paid by the body corporate. 3. Murray agrees to pay the sum of $500.00 to the body corporate prior to the commencement of construction, for which the body corporate shall issue her with a receipt. 4. The body corporate agrees to provide Murray with copies of all receipts for the work undertaken in relation to the construction. 5. The body corporate agrees to recommend to the two owners adjoining Murray’s lot that those owners remove all invasive trees and shrubs from their exclusive use areas. 6. The body corporate agrees to remove the current sprinkler system near Murray’s lot and replace it at least 400mm away from the wall of Murray’s lot with 180 degree sprinkler heads directed away from the wall. 7. The body corporate and Murray agree that the agricultural drain/trench shall comprise an appropriate plastic PVC membrane at the sides and base of the trench with a 100mm stocking covered agricultural pipe, backfilled with 19mm bluechip, with no more than 25mm soil cover over a Geotech fabric. 8. The body corporate and Murray agree that the water shall be discharged from the drain in an appropriate manner and in accordance with the requirements (if any) of the local authority. 9. The body corporate and Murray agree that construction shall commence as soon as possible and shall be completed, weather and availability of tradespersons permitting, within 90 days. It is further agreed that any delays and the reasons therefore shall be communicated without delay by the body corporate to Murray.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0534-2003

"Sunny Ridge Gardens" CTS 19295

The applicant, Lillias Murray, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1. The body corporate of Sunny Ridge Gardens Retirement Village to immediately rectify the water seepage and water intrusion issues arising from the common property garden area in question.
2. The body corporate of Sunny Ridge Gardens Retirement Village to pay all costs associated with these repairs from the maintenance reserve fund and/or sinking fund.
3. The body corporate to reimburse the cost of the inspection and written report from Kaldoe Inspection Services Pty Ltd being $240.00 and the cost of the drainage plans from gold Coast Council which the body corporate were unable to supply being $170.00.

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)).

The body corporate committee and all owners were invited to respond to the application. Submissions were received from the body corporate committee and from the body corporate manager and scheme operator, SRG Management Services Pty Ltd.

The applicant replied to the submissions, following which the matter was referred to mediation. At a mediation meeting held on 20 January 2004, attended by the body corporate chairperson and the applicant, agreement was reached on all aspects of this dispute. The parties further agreed to refer the matter to an adjudicator under section 276(5) of the Act, for the purposes of a consent order. I have perused the agreement reached between the parties, and made orders by consent as requested.