Banksia Court [2005] QBCCMCmr 557 (7 October 2005)

Last Updated: 19 July 2006

REFERENCE: 0406-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15001
Name of Scheme:	Banksia Court
Address of Scheme:	5 Anne Avenue BROADBEACH QLD 4218

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

Body Corporate for Banksia Court CTS 15001

I hereby order that the owners of lot 4, Rosina Caterina Figliuzzi and Assunta Figliuzzi, shall within 1 month of the date of this order carry out at their expense such work as is necessary so as to restore their lot to good condition.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0406-2005

"Banksia Court" CTS 15001

ORDER SOUGHT

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

That the owners of unit 4 return the unit to its original condition including all internal fittings.

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) 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 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)).

SCHEME DETAILS

Banksia Court registered as a building units plan (now described as a building format plan) on 30 March 1966. It comprises 5 lots and common property and is regulated by the Body Corporate and Community Management (Standard Module) Regulations 1997 (Standard Module).

BACKGROUND

The applicant stated that lot 4 is in a derelict state, with the windows and doors boarded up. The applicant further stated that the lot has been gutted and squatters have been living in it. The applicant contended that the situation poses a health and safety risk to the other residents in the scheme. The applicant provided copies of relevant correspondence with the owners of the lot; the Notice of Continuing Contravention served on the owners of the lot and a quote for the necessary repairs.

All owners were invited to respond to the application. A submission was received from the owner of lot 5, who supported the application. The owners of lot 4 did not respond.


DETERMINATION

A quote dated 23 February 2005 from Regency Developments (Qld) Pty Ltd reveals that lot 4 requires extensive refurbishment work to be carried out. The cost of such work is stated to be $28,000.00 plus GST.

Section 160 of the Act provides:

160 Obligations of owners and occupiers to maintain

The regulation module applying to a community titles scheme

may impose obligations about the condition in which lots

included in the scheme must be maintained.

Section 120 of the Standard Module provides:

120 Obligations of owners and occupiers--Act, s 160

(1) An occupier of a lot included in the scheme must keep the

parts of the lot readily observable from another lot or common

property in a clean and tidy condition.

(2) The owner of a lot included in the scheme must maintain the

lot in good condition.

(3) The owner’s obligation under subsection (2) to maintain the

lot in good condition does not apply to a part of the lot the

body corporate is required under this regulation to maintain in

good condition.

(4) The owner of a lot included in the scheme must maintain the

utility infrastructure within the boundaries of the lot, and not

part of common property, in good condition and, if it is in

need of replacement, must replace it.

(5) This section applies only to a lot that is not a community titles

scheme.

The owners of lot 4 have not challenged the applicant’s assertions in relation to the state of their lot, notwithstanding having been given the opportunity to do so. A member of the Commissioner’s staff, Ms Margaret Leet, telephoned the owners on Friday 26 August 2005. One of the owners, Mrs Figliuzzi, stated that she did not have time to lodge a submission. Later in the same conversation, Mrs Figliuzzi told Ms Leet that she might lodge a submission "over the weekend", however no submission was ever received.

Earlier on the same date, Ms Leet had spoken with the body corporate manager, who informed Ms Leet that the owners had rung him and advised him that they had contracted for the work to be done in their lot. The applicant has not advised the Commissioner’s office that any work has been commenced.

I accept the evidence that lot 4 is in a derelict condition. Given the clear obligation on owners to maintain their lots in good condition, I have ordered that the owners of lot 4 restore the lot to good condition under section 120 of the Standard Module.

The owners of lot 4 should note that in the event they fail to carry out this work, they will not only have failed to comply with an adjudicator’s order (the maximum penalty for which is $30,000.00 – see section 288 of the Act) the body corporate may also carry out the work on behalf of the owners and then recover the reasonable cost of doing so from them as a debt (section 121 of the Standard Module).