Ferry Flats [2005] QBCCMCmr 299 (3 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0137-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13420
Name of Scheme:	Ferry Flats
Address of Scheme:	112 Lindsay Street, HAWTHORNE QLD 4171

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Beverley and Robert Gallagher owners of Lot 1:

I hereby order that the application for an order to refund costs (of $1150) incurred for the eradication of termites, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0137-2005

"Ferry Flats" CTS 13420

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"to refund costs (of $1150) incurred for the eradication of termites."

Jurisdiction:

This is a dispute between the owners of Lot 1 (B and R Gallagher) (the applicants) and the Body Corporate of the Ferry Flats CTS 13420 (the respondent), concerning the reimbursement of costs associated with the eradication of termites found within the scheme. This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

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 with an invitation to respond to the matters of dispute raised in the application. The respondent did not provide a submission in reply however two owners did. I have considered these materials along with the application in my determination.

The brief facts of the matter are as follows. The applicants reside interstate and lease the lot. I presume that via their tenants or managing agent the applicants discovered termites within their lot (in the wall sheeting and beading of the bedroom in the lot) in late 2004. They advised the respondent of this fact on 6 September 2004. It was resolved by the respondent that steps should be taken to address this issue. It took until February 2005 before treatment was effected after some difficulties in deciding who would be responsible for the payment of the treatment and difficulties in getting quotes and retaining a tradesperson to inspect and treat the problem.

Two reports were commissioned on the termite infestation. These were done by Peterson’s Pest Control Pty Ltd (Inspection date 13 September 2004) and Cureall Pest Control (Inspection date early 2005). Both inspections failed to establish where the termite infestation came from however noted extensive damage to the internal features of lot 1. Despite an agreement between the
applicants and respondent to engage Peterson’s Pest Control Pty Ltd to undertake the treatment and further preventative work (i.e installing a chemical barrier around lot 1) the contractor declined to do the work. Their quote for the work was $1150. This necessitated engaging Cureall Pest Control who quoted $1584 for the same work. This work was performed in January and February 2005.

The respondent had received advice regarding their liability to pay for the termite treatment within the lot and on the common property. The advice was that they would be liable if they failed to establish and maintain a preventative maintenance system (a termite barrier system or regular inspection regime) and the termite nest was found on the common property. Despite this the respondent offered to pay for the difference in cost between the two quotes being a sum of $434. The applicants were to pay $1150 towards the costs.

The applicants paid their account to the respondent who paid the final amount of $1584. The applicant now suggests that as the respondent delayed in having the treatment undertaken (from September 2004 to February 2005) and that some of the chemical barrier treatment around lot 1 is on the common property then they should be fully responsible for the treatment and accordingly reimburse the applicants $1150.

Determination

"Ferry Flats" was registered in March 1975. The scheme became subject to the provisions of the Building Units and Group Titles Act 1980 upon commencement of that Act. Under the transitional provisions of the (new) Act the scheme was immediately subject to the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). The scheme remains under the regulation of the Act and the Standard Module.

It is generally recognised that the body corporate of a community titles scheme is responsible for the management and maintenance of all common property within the scheme. This is supported by various sections including sections 94 and 152 of the Act and 109 of the Standard Module.

A scheme registered as a building unit plan (now termed a building format plan) has boundaries of lots determined as per sections 48C(1) and 49C(4) of the Land Title Act 1994. Relevantly these sections provide that the boundary of a lot with the common property or a neighbouring lot is the centre of the external walls around the lot, the centre of the ceiling (excluding false or suspended ceilings) and the centre of the floor slab.

In applying the above two pieces of information the respondent is responsible for maintaining the common property the limits of which are the centres of the walls, floor and ceiling of the lots. The applicants are responsible for maintaining the area within their lot.

As is the usual legal position if the cause of the damage has been found on or come from the common property and the relevant body corporate has failed to establish and maintain a preventative maintenance system or system to minimise such risks the liability for any subsequent damage linked to the cause on the common property should be the responsibility of the body corporate. Such was the advice given to the respondent in this case.

In the current case two independent pest inspections failed to establish where the termites have come from or to link them to the common property. There were active termites discovered in a nearby garden bed which appears to be on the common property however this is in my view insufficient to establish that the termites have come from the common property and caused the damage to lot 1. I see no evidence to support the orders sought by the applicants.

The application is dismissed.

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