Nepean Centre [2007] QBCCMCmr 449 (27 July 2007)

Last Updated: 1 August 2007

REFERENCE: 0249-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6782
Name of Scheme:	Nepean Centre
Address of Scheme:	6 Nepean Avenue ARANA HILLS QLD 4054

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

The State of Queensland (Represented by the Department of Public Works) the occupier of lot 3

I hereby order that the owner of lots 1, 2 and 3, Testarossa Group Pty Ltd ACN 117 121 507 as trustee, shall within 14 days of the date of this order pay to The State of Queensland (Represented by the Department of Public Works) the sum of $3,425.85 as reimbursement of monies expended by the Department of Public Works maintaining the common property in good condition for the period January 2006 to October 2006.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0249-2007

"Nepean Centre" CTS 6782

ORDER SOUGHT

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

That an order be made against Testarossa Group Pty Ltd ACN 117 121 507/Body Corporate for Nepean Centre 6782 providing for the reimbursement of monies spent by the applicant on maintenance of the property totalling $3,425.85.

JURISDICTION

The application evidences a dispute between the occupier of a lot included in a community titles scheme and the body corporate for the scheme (Act s227(1)(b)).

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

Nepean Centre is a community titles scheme comprising 3 lots and common property. The scheme was established upon registration of the building unit plan (now described as a building format plan) on 15 July 1988. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicant has occupied lot 3 as a lessee under a lease which commenced on 1 February 2003 for an initial term of 4 years, with two options each of two years.

All lots in the scheme are owned by Testarossa Group Pty Ltd (Testarossa). Previously all lots were owned by Nattin Pty Ltd (Nattin). The transfer to Testarossa was recorded in the Titles Office on 30 January 2006.

The applicant stated in the supporting grounds that it had conducted a search in the Australian Securities & Investments Commission and had ascertained that the director, secretary and sole shareholder of Testarossa is Tina Fiorello. Ms Fiorello was also a director of Nattin.



A previous dispute resolution application between this applicant and the body corporate for Nepean Centre resulted in the following order being made on 22 November 2005:

I hereby order that Nattin Pty Ltd, the owner of all lots included in the scheme, and therefore the sole member of the body corporate, shall within 14 days of the date of this order comply with its obligations under section 152 of the Body Corporate and Community Management Act 1997 and sections 109 and 120(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 and in particular, shall attend to the following:

1. Maintain and clean common property toilets
2. Repair damaged toilet door
3. Pay the common property Energex account
4. Repair broken lights on the common property
5. Clean and maintain the common property foyer
6. Remove wasp nests from the common property foyer
7. Remove rubbish from the common property
8. Maintain lawns and gardens on the common property
9. Repair water damaged eaves of the building
10. Repair and maintain blocked guttering
11. Eradicate vermin from the common property

I further order that in the event that Nattin Pty Ltd does not comply with the order above within the time allowed, then The State of Queensland shall be authorised to arrange for the completion of the repairs and maintenance as ordered, at the expense of Nattin Pty Ltd.

The applicant stated that the work ordered to be carried out by Nattin was not carried out by Nattin, which resulted in the applicant completing the work, with the intention of then pursuing payment from Nattin. The applicant explained that the search at ASIC was carried out to enable the applicant to commence action against Nattin for recovery of the monies expended. The applicant discovered that Nattin was de-registered as a company on 18 December 2005

The body corporate and Testarossa were invited to respond to the application. No submission was received from either party.

DETERMINATION

The members of the body corporate for a community titles scheme are the owners of all lots included in the scheme (Act s31).

The body corporate must maintain common property in good condition (Standard Module s109(1)).

As all lots are owned by Testarossa, it constitutes the body corporate, and must maintain the common property.

The claims made by the applicant have not been denied or challenged by Testarossa. I accept that the applicant has paid for the services detailed in the invoices attached to the application during the period January 2006 to October 2006.

I am satisfied that Testarossa should reimburse the applicant for monies expended by the applicant in maintaining the common property in good condition. I have ordered accordingly.