No. 9 Port Douglas Road [2006] QBCCMCmr 280 (1 June 2006)

Last Updated: 19 December 2006

REFERENCE: 0327-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4871

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

Maxwell Stainlay, owner of lot 17 and Tecelec (Qld) Pty Ltd, owner of lots 4 and 10

I hereby order that the application for orders, including to invalidate a resolution proposing that the body corporate install a new roof over the front section of the building and repair the remaining roof section, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0327-2006

"No. 9 Port Douglas Road" CTS 24368

Interim Application

No. 9 Port Douglas Road Community Titles Scheme (PDR) is an 18 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is described as a warehouse/office/residence converted to an 18 unit complex.

This application is by Maxwell Stainlay, owner of lot 17 and Tecelec (Qld) Pty Ltd, owner of lots 4 and 10 (applicants) seeking orders against the body corporate (respondent).

The applicants have provided a copy of a voting paper that shows various alternatives described as being to repair or replace the roof. These involve various options including installing a new metal roof over the entire building, installing a new roof over the front of the building and repairing the roof over the back of the building, or installing a new waterproofing membrane at the front of the building.

Decision

The applicants’ main submissions are to the effect that all the alternatives to repair or replace the roof should not have been combined in one motion as some are for repairs only while others are for repairs and improvements combined. In particular, it is submitted that any of the alternatives resulting in improvements would have required a special resolution rather than an ordinary resolution (Accommodation Module, 112).

After considering the application and submissions I have reached the conclusion that the application is misconceived and without substance. There is no dispute that there are serious problems with water leakage through the roof and the applicants’ preferred option involves significant works including parapet capping, relocation of air conditioning and installation of a new water proofing membrane on the tiled terrace. The proposal adopted by the majority of owners was to build a new metal roof over the terrace and the material provided with the application includes a letter from a builder recommending roofing rather than a membrane due to conditions of extreme tropical heat, high UV readings and the volume of torrential monsoonal rains.

In an appeal of an order of a referee under the Building Units and Group Titles Act 1980 it was stated that "the term repair may also be interpreted to include replacement, refurbishment and maintenance and I accept that the repairs may invoke an element of improvement, but may still remain within the general concept of repair".^[1] In the present circumstances it seems clear that the proposals involving a metal roof over the building fall into the category of repairs and maintenance and were genuine alternatives to the proposals involving fixing or installing waterproofing membranes. The primary purpose of all these alternative proposals is to stop rain leaking through the existing roof into the building and reasons are given for why proposals beyond mere repair may be preferable. Particular proposals may result in some greater actual or perceived benefit to some owners but this, in itself, does not mean that the proposal should necessarily be classed as an improvement rather than maintenance.

There is nothing in the present application to persuade me that the real purpose of the alternative proposals goes significantly beyond maintenance in the form of rectifying an existing defect with the building. The application appears to be misconceived and without substance. I will therefore dismiss the applications for both interim and final orders on this basis (Act, 270).

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^[1] Proprietors "The Rocks Resort" v. Costi, Building Units Appeal Tribunal No 227 of 1997, O’Driscoll SM, 24 September 1997.