Jade Court - Maroochydore [2005] QBCCMCmr 126 (3 March 2005)

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

I hereby order that the committee of Jade Court shall be constituted of Brian Peter and Robin Auld and that they shall hold the positions of chairperson, treasurer and secretary jointly pursuant to section 11(4) of the Standard Module. The committee will be constituted in this way from the date of this order until altered in accordance with the legislation.

I further order that Brian Peter is to provide the body corporate with two quotations for independent persons to hose the roof of the building and report on whether the roof appears to be draining as intended and whether there is an obvious need for any maintenance work. Within one month of the quotations being given then, provided that at least one of these quotations is below the relevant limit for committee spending, the body corporate is to engage the person providing the lowest quotation and arrange for an inspection of the roof by that person.

I further order that the body corporate is to restore the pool gates to good condition as soon as possible.

I further order that the body corporate is to otherwise comply with its maintenance obligations by, within three months, passing resolutions that:

• Provide for maintenance of the gardens in good condition;
• Provide for repair of the bollard light near the driveway or otherwise provide for replacement or removal of the lighting; and
• Provide for maintenance of the guttering.

I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0791-2004

"Jade Court - Maroochydore" CTS 27751

Jade Court Community Titles Scheme (Jade Court) is a 3 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes and lot boundaries are designated under a building format plan.

There are two disputes currently before this office in applications referenced 588-2004 and 791-2004. In application 588-2004, Brian and Maureen Peter, the owners of Lot 1 (applicants) seek an order against Robin and Patricia Auld, the owners of Lots 2 and 3 (respondents). The applicants claim that Robin Auld has carried out unauthorised work on the roof of the building, that water has been leaking out of the brickwork at the roof level, and that Robin Auld may have breached the waterproofing membrane for the roof. An order is sought to allow an independent expert to inspect the roof and determine if the membrane has been breached. If so, an order is sought that the damage be repaired as soon as possible at the respondents’ cost. In application 791-2004 the applicants seek orders that the body corporate be required to attend to matters of general maintenance and that the body corporate managers arrange the appropriate tradespersons to carry out the necessary work without delay. Specific mention is made of lighting that needs replacement, maintenance of gardens, rusting pool gates, leaking guttering and reimbursement of a payment of $110 made by the applicants for cleaning of the pebblecrete in the driveway and courtyard areas.

Both owners have had the opportunity to, on request, inspect the material for both these applications and both owners have been given the opportunity to make submissions in respect of these applications. This order is to resolve the disputes in both applications and these reasons for decision apply to both applications.

The applicants’ main submissions were to the effect that the respondents hold the majority of the voting power and no maintenance can be performed without their agreement. It is submitted that the respondents are frequently overseas and are not contactable regarding maintenance issues.

In particular, the applicants submit that a curtain of water has been seen flowing from the brickwork at about the height of the roof. They have said that the respondents have performed work on the rooftop area that forms part of one of the respondents’ lots and have expressed concern that this work has resulted in a breach of the waterproof membrane.

The respondents make submissions to the effect that they are contactable when overseas through the body corporate manager. There are submissions to the effect that meetings are pointless if the applicants seek to overturn any decision that does not suit them and fail to implement motions that have passed. In particular, reference is made to a failure to proceed with a resolution to fit a waterproof cover for the control mechanism of the garage door and cancellation of a tradesperson engaged by the body corporate manager. Patricia Auld submits that it is a small complex and that repair work is being satisfactorily organised by the chairperson in conjunction with the body corporate manager. Robin Auld, the chairperson, states that he has full confidence in the body corporate manager’s ability to decide what work is urgent and carry it out but that non-urgent work should be put to the committee for approval as is standard practice.

The applicants have responded to this saying that the body corporate manager has stated that he can do nothing about any work, urgent or not, unless he gets approval from the chairperson. The applicants also say that they received a suitable $80 quote for installing a waterproof cover for the control mechanism of the garage door but that Robin Auld has refused to allow that to proceed and is demanding further quotes. They also say that the cancelled tradesperson was an electrician who telephoned seven weeks after the fault was reported by which time the applicants had got the problem fixed at no cost to the body corporate.

It is the responsibility of owners, as members of the body corporate, to ensure that the body corporate meets its maintenance responsibilities. The main legislative requirement is that the body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition (Standard Module, 109).

Whether something is being kept "in good condition" may depend on the circumstances. However, the ordinary meaning of these words would not allow the body corporate to leave parts of the common property in a broken or dilapidated state. When common property requires maintenance the committee, or an owner, should put forward a motion proposing the performance of that maintenance for consideration by the committee or by owners in general meeting.

Any maintenance performed by the body corporate must ordinarily be under the authority of a resolution of the body corporate. A decision of the committee is effective as a resolution of the body corporate and maintenance matters are generally within the power of the committee to determine provided the spending is below the relevant limit for committee spending (Act 100, Standard Module 26). Otherwise the decision of the body corporate must be made in general meeting. Any motion proposing maintenance should provide details of the maintenance to be performed and specify the amount of body corporate funds authorised to be spent (Act 150, Standard Module 103). If the likely expenditure will exceed the relevant limit for major spending then the person proposing the motion will ordinarily need to provide two alternative quotations (Standard Module, 104).

The committee has an important role in determining what maintenance is necessary and either passing resolutions to authorise the performance of this maintenance at body corporate expense or calling a general meeting at which owners can authorise the maintenance. However, it is apparent from these applications that owners have been expecting maintenance to be performed in an informal way as a result of discussions with the body corporate manager.

The applicants have in fact sought an order that the body corporate managers should arrange the appropriate tradespersons to carry out maintenance. However, if owners want to engage the body corporate manager to provide the service of coordinating maintenance work they need to pass a resolution to appoint the body corporate manager as a service contractor and authorise the spending of body corporate funds to a specified amount in doing so. It is more usual that owners take responsibility for maintenance either by decisions at committee level or by decisions in general meeting depending on the amount of spending involved.

In discussions with the parties it became apparent that the committee is currently comprised of three voting members, being one of the applicants and both of the respondents. This committee membership is not in accordance with the legislation. The scheme consists of only three lots with the respondents owning two of those lots. There are therefore only two different owners for all lots in the scheme and the committee should consist of both of those owners or their nominees (Standard Module, 11). The positions of chairperson, treasurer and secretary should be held jointly by both members unless agreed otherwise (Standard Module, 11(4)).

I therefore consider it appropriate that I make an order reconstituting the committee in accordance with the legislation. Both Brian Peter and Robin Auld agreed that they should hold the positions of chairperson, treasurer and secretary jointly so I will make an order to that effect.

This means that Brian Peter and Robin Auld should collaborate on decisions regarding maintenance and, provided maintenance issues are within the power of the committee, they will be able to pass resolutions authorising the maintenance and the associated spending of body corporate funds (Standard Module, 66). If an owner is unable to attend a committee meeting then they are entitled to appoint a proxy (Standard Module, 66). Otherwise, the remaining owner will constitute a quorum and will be able to make any necessary decisions (Standard Module, 32).

The applicants say that they noticed water leaking through the brickwork at about the level of the roof. They say that a local council inspector says that there is a strong probability that the waterproofing membrane for the building had been damaged by construction work that Robin Auld has performed on the roof.

I contacted the local council inspector who informed me that there is a car port like structure on the roof garden and that work has been done that may have breached the waterproofing membrane. However, Robin Auld has said that the majority of work was performed twelve years ago. He said that most of the work he has done recently is maintenance on the roof of the structure that could not have affected the waterproofing membrane of the building. Robin Auld stated that he had not done any work to the footings of the structure except to replace some decking but that only involved nailing boards to existing wooden beams and the nails did not go through to the concrete roof of the building or the waterproofing membrane that forms part of that roof. He also said that the structure on the roof is some distance from the edge of the roof and if the waterproofing membrane had been damaged it would be much more likely that water would go through to their unit below rather than out of the edge of the brickwork. Robin Auld said that the brickwork at the side of the building continues up above the level of the roof to form a wall around the roof garden. It is submitted that the applicants merely saw water running out the overflow outlets that protrude out through this brickwork at about the level of the roof.

The applicants have responded to the effect that they are aware of the overflow outlets and that the water was coming through the actual brickwork at roof level rather than through these outlets. Maureen Peter said that she saw a curtain of water approximately two metres wide coming through the brickwork and it was definitely not coming through the small overflow pipes.

Based on these submissions it seems unlikely that this water flowing through the brickwork has anything to do with work performed by Robin Auld on the structure on the roof garden. However, it appears that some form of repair is required. The water may be falling from a purely cosmetic crack in the brick wall at the base of the section that forms the balcony wall around the roof garden. If so, the application of some sealant may have the roof draining correctly again. At this stage, I consider it necessary that the body corporate investigate the drainage from the roof and determine if any maintenance work is necessary. I consider a preliminary inspection will suffice and I do not consider it necessary or appropriate to require a report from a qualified engineer.

The parties were unable to agree that they both attend the roof to view the drainage. However, Brian Peter suggested that the body corporate engage an independent person who had previously performed some work on the scheme. Both parties were agreeable to this and I intend to order that Brian Peter obtain two quotations for suitable independent person to hose the roof of the building and report on whether the roof appears to be draining as intended and whether there is an obvious need for any maintenance work. I will then order that the body corporate engage the person providing the lowest quotation. If this report indicates that maintenance work is necessary then owners should determine whether the work is the responsibility of the body corporate or of the owners of the lot and appropriate steps should be taken to perform the maintenance.

The applicants have submitted photographs’ showing the base of one of the pool gates is severely rusted and that the release knob has broken off. The applicants express concern that the body corporate will be liable to be fined if this disrepair means that the pool fencing no longer complies with government requirements.

While the respondents have submitted that the pool fencing currently complies with government requirements it is clear that the gates have not been maintained in good condition. I am satisfied it is appropriate to grant an order that the body corporate restore the pool gates to good condition as soon as possible.

The applicants say that one of the bollard lights is not working and needs replacement as the screws have fused making it impossible to remove the cover and replace the bulb. The respondents say that it is a relatively simple matter to drill out the screws and replace the bulb. It is a matter for owners to determine how the body corporate should repair common property. I will therefore simply make an order that the body corporate pass a resolution proposing how it is to repair the light and leave it to owners to determine the way they wish to do that. Alternatively, owners may consider it preferable to improve the common property by installing some alternative lighting system. This may, however, require the passing of a special resolution (Standard Module, 113).

The parties obviously have different expectations regarding the requirement that the common property gardens be maintained in good condition. The respondents suggest that occasional work by the person who cleans the pool is sufficient. The applicants request maintenance by a qualified gardener including mulching, fertilisation and pruning three to four times per year. They say that currently there are two dead trees and pruning is needed.

There are a range of matters that parties could agree on that would satisfy the minimum obligation of maintenance of the garden in good condition. However, the garden is not presently being maintained in good condition if two trees appear dead and if trees or bushes clearly require pruning. I will make an order requiring the body corporate to pass a resolution that provides for how the body corporate is to maintain the gardens in good condition.

The applicants claim the gutters are leaking and have submitted photographs that appear to show rust patches on the gutters.

From a review of the plan and the photographs it is clear that the guttering around the roof forms part of the common property utility infrastructure of this scheme. The body corporate must take steps to maintain this guttering and I will grant an order to that effect. I will leave it to owners to determine the actual manner in which the body corporate is to go about maintaining this guttering.

The applicants say that they had the pebblecrete driveway and courtyard areas cleaned with a high pressure water application and chemical treatment to remove fungus and moss. Photographs have been provided which evidence some discolouration likely to be caused by fungus or moss. The applicants seek reimbursement of $110 towards the work undertaken.

The respondents say that this cleaning was unnecessary, was voted against at the last annual general meeting and that similar water blasting of tiles around the swimming pool had caused problems when sand was washed from between the tiles.

From the photographs, it appears that the water blasting performed at the applicants’ request was beneficial. However, an owner is not entitled to undertake work on behalf of the body corporate without a resolution authorising that work. It is not clear that this work was necessary to maintain the driveway in good condition as sweeping and spot removal of fungus or moss could well have been sufficient. I therefore will not make any order requiring reimbursement of these funds.

For these reasons, I make the order above. I remind the parties that maintenance of the common property in good condition is a minimum obligation but encourage the parties to endeavour to reach mutual agreement and comprise on the manner in which the body corporate should attend to maintenance issues.

Number of Scheme:	27751
Name of Scheme:	Jade Court - Maroochydore
Address of Scheme:	20 Fourth Avenue COTTON TREE QLD 4558

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Jade Court - Maroochydore [2005] QBCCMCmr 126 (3 March 2005)