Gateway Lodge Apartments [2007] QBCCMCmr 288 (16 May 2007)

Last Updated: 27 June 2007

REFERENCE: 0439-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23895
Name of Scheme:	Gateway Lodge Apartments
Address of Scheme:	QUEENSLAND

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

The Body Corporate for Gateway Lodge Apartments CTS 23895

I hereby order that the body corporate is authorised under section 101(1)(c) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 to expend $13,860.00 in accordance with the written quotation dated 15 May 2007 from Len Reilly Builder for the removal and replacement of part of the boundary fence as detailed within that quotation.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0439-2007

"Gateway Lodge Apartments" CTS 23895

ORDER SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) for authorisation for emergency expenditure to remove and replace brick wall boundary fencing adjoining a child care centre.

JURISDICTION

Section 227(2) of the Act provides that an adjudicator may make a declaratory order about the operation of the Act, and that such an application seeking such an order is also a ‘dispute’ for the purpose of the section.

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

Gateway Lodge Apartments is a community titles scheme comprising 27 lots and common property. The scheme was established upon registration of the building units plan (now described as a building format plan) and is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

BACKGROUND

The applicant stated that there is a brick wall boundary fence adjoining a child care centre. The fence also forms part of the scheme’s pool fence, and is in disrepair. The applicant further stated that the fence not only poses a safety issue, in that it is in danger of imminent collapse, but also if the repairs are delayed the cost will be significantly increased because a car park is about to be commenced in the child care centre. The car park construction will limit the ability of the body corporate’s contractor to remove the debris from the demolished fence from the child care centre side of the property.

Supporting documentation was provided as follows:

• Letter dated 15 May 2007 from Mr Michael Sciacca, Director, NQ Early Learning
• Email dated 15 May 2007 from the Treasurer of the body corporate to the body corporate manager
• Quotation dated 15 May 2007 from Len Reilly, Builder

I noted from the letter from Mr Sciacca that the child care centre was prepared to meet 3/4 of the cost of a proposed new dividing fence, on condition that the body corporate proceeded expeditiously with the remaining 1/4 of the fence, which is in disrepair.

On 16 May 2007 I spoke by telephone with Mr Reilly who confirmed that his quote was for the 1/4 portion of the fence. He also confirmed that he has been engaged by the child care centre to construct the other 3/4 of the fence, at the child care centre’s cost.

I arranged for a member of the Commissioner’s staff to telephone the body corporate manager to enquire if any other quotes had been obtained. The body corporate manager advised Ms Ruby Salazar on 16 May 2007 that no other quotes had been obtained, because the body corporate had had difficulty in having any other contractors giving a quote.

In the circumstances, I am satisfied that:

• There is a safety issue in relation to the existing fence
• The expense can properly be described as emergency expenditure under section 101(1)(c) of the Accommodation Module.
• There is a financial benefit to the body corporate in proceeding as soon as possible because of the offer from the child care centre to meet the cost of 3/4 of the dividing fence (thereby saving the body corporate what would otherwise have been its requirement to contribute to 1/2 of the total fence)

I have ordered accordingly.