Sanctuary Manors [2006] QBCCMCmr 129 (16 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0704-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28773
Name of Scheme:	Sanctuary Manors
Address of Scheme:	38 Caseys Road HOPE ISLAND QLD 4212

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

William Albert Cummings, the co-owner of lot 1

I hereby order that the application by William Albert Cummings, the co-owner of lot 1 for an order requiring the Body Corporate of Sanctuary Manors pay for necessary repairs to roof, gutters and interior water damage, is resolved by consent on the following terms: 1. That Burchill Partners be commissioned immediately by the body corporate to inspect the 6 units in question (including that of the applicant) and confirm that the BSA authorised repairs have been fully completed in a proper and workmanlike manner. 2. That at the same time Burchill Partners inspect all roofing structures, drainage infrastructure, and the design of unit 1 to determine whether any additional remedial work is required to prevent further penetration into the unit. 3. That if any new remedial work on unit 1 is recommended, than that work be carried out at the body corporate’s cost without delay. 4. That if the BSA sanctioned work on any of the 6 units has not been completed, or not completed properly, that the BSA be notified immediately and ask its contractors to complete or rectify (as the case may be) the work in question. 5. That the owner of unit 1 be invited to make a claim through the body corporate insurance for the cost of repair to any resultant damage to the interior of the lot, and that if the claim is not met by the insurer that the body corporate pay the reasonably costs of that damage.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0704-2005

"Sanctuary Manors" CTS 28773

The applicant, William Albert Cummings, the co-owner of lot 1 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

I am requesting an order requiring The Body Corporate of Sanctuary Manors pay for necessary repairs to roof, gutters and interior water damage.

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 scheme is a subdivision of 70 recorded under a building format plan of subdivision. The regulation module applying to the scheme is the accommodation module.

The applicant has alleged that certain repairs to common property and his lot, the responsibility of the body corporate to undertake, have not been so performed, and the applicant seeks an order requiring the body corporate to undertake necessary repairs to the roof, gutter and interior water damage at its cost.

In its belated response, the body corporate has not denied responsibility for the relevant repairs. In fact it has undertaken to complete the repairs at its cost in the following terms:

1. That Burchill Partners be commissioned immediately to inspect the 6 units in question (including that of the applicant) and confirm that the BSA authorised repairs have been fully completed in a proper and workmanlike manner.
2. That at the same time Burchill Partners inspect all roofing structures, drainage infrastructure, and the design of unit 1 to determine whether any additional remedial work is required to prevent further penetration into the unit.
3. That if any new remedial work on unit 1 is recommended, than that work will be carried out at the body corporate’s cost without delay.
4. That if the BSA sanctioned work on any of the 6 units has not been completed, or not completed properly, that the BSA be notified immediately and ask its contractors to complete or rectify (as the case may be) the work in question.
5. That the owner of unit 1 be invited to make a claim through the body corporate insurance for the cost of repair to any resultant damage to the interior of the lot, and that if the claim is not met by the insurer that the body corporate pay the reasonably costs of that damage.

The submission by the body corporate notes:

In making these decisions, the Committee recognised its statutory obligation to maintain common property in good condition ... It will be seen that in essence the Committee has resolved to put into effect the same outcomes that the applicant seeks in his application. ... In all the circumstances, the committee does not formally oppose the orders sought ...

In the circumstances, I am satisfied that the belated commitment of the body corporate to the rectification of the repair issues raised by the applicant will in fact lead to the undertaking of those repairs. I see no further need to order in respect of this dispute, other than to order, as a consent order, the undertaking which the body corporate committee has already given in its committee level resolution. The benefit of so including this resolution as an order is that if it should not be complied with, then the applicant will be in a position to seek enforcement of the order without further reference to an adjudicator. I have ordered accordingly.