Cannington Court Garden Villas [2009] QBCCMCmr 323 (28 August 2009)

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

I hereby order as follows –
1. that the repairs to Lot 24 listed on the quotations both dated 18th May 2009 from Termite Repair Specialists and Elk Building Services Pty Ltd respectively and provided to the body corporate by the Applicants are required to be undertaken with some urgency;
2. that the Applicants, on 24 hours notice, shall allow the body corporate’s chosen contractor or contractors entry into or onto Lot 24 in order to quote for the same repairs listed in the quotations detailed at item 1., if the body corporate so requires;
3. that all quotations for the repairs listed shall be set out as a motion with alternatives put to a general meeting of the body corporate within 6 weeks of the date of this order, with an explanatory note by the committee that an adjudicator’s order has required that the repairs are undertaken with some urgency following the general meeting;
4. that repairs required to Lot 23 may be undertaken at the same time as repairs to Lot 24 but shall not delay or hinder in any way the repairs required to Lot 24;
5. that the body corporate shall be liable for repairs only in accordance with its responsibilities pursuant to section 159(2)(b) Body Corporate and Community Management (Standard Module) Regulation 2008 as described more particularly in the reasons for decision herein;
6. that the body corporate shall, within 6 weeks of the date of this order, engage a person with appropriate qualifications and expertise such as a hydraulic consultant, to investigate and report on the drainage adequacy of the common property in the vicinity of Lot 24, and to include recommendations to remedy any deficiency. The body corporate will be responsible for having any work carried out that is recommended by the engaged person and which is a body corporate responsibility under the legislation, but the Applicants will be responsible for any recommendations by the engaged person which are their responsibility under the legislation;
7. that works recommended by the report described in item 6. should be carried out as soon as practicable thereafter in accordance with the reasons for decision described herein.

This is an application dated 23rd June 2009 and amended on 25th June 2009 by Lynne Allan and Geraldine Power (the Applicants), co-owners of Lot 24 in the scheme, against the body corporate for Cannington Court Garden Villas CTS 7132 (the body corporate) for an order “that a decision be made by an adjudicator regarding the repairs to unit 24 and who will be liable to pay for such repairs.”

They also “request ... assistance regarding previous requests to [the body corporate manager] for a permanent drain to be installed at body corporate expense behind unit 24 to catch storm water run off from the common land behind unit 24.”

Since such declaratory statements do not document a dispute, I am treating this application as one which seeks an order that the body corporate, described as the respondent to this application, pays for the Applicants’ repairs to Lot 24; and an order for the body corporate to install a stormwater drain at the rear of unit 24.

“Cannington Court Garden Villas” CTS 7132 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are 24 lots in the scheme created under a Building Unit Plan of subdivision.

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

(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 Applicants say that on 28th April 2009 extensive termite damage was discovered in Lot 24. Active termites were reported by Complete Termite and Pest Solutions (CTPS) in a load bearing wall. The termites were treated and eradicated and the weepholes at the rear of the unit adjoining the kitchen were sealed. CTPS sent an account dated 1st May 2009 for $380.00 . CTPS said that the termite contractor engaged by the body corporate (Ecology Care) had installed a termite barrier that did not meet Australian Standards.

The Applicant Lynne Allan (Ms Allan) is a committee member and on 6th May 2009, at a committee meeting, advised the body corporate manager of the termite damage in Lot 24. The body corporate manager “stated that the termite repairs would be paid for by the Body Corporate” and that Ms Allan should obtain two quotations, one of which “would be approved at the next AGM or earlier by email depending on the amount.” The next AGM was to be held on 24th June 2009.

Ms Allan obtained two quotations for repairs, both dated 18th May 2009, one from Elk Building Service Pty Ltd (Elk) for $12,800, and one from Termite Repair Specialists (TRS) for $18,931, and submitted them both to the body corporate manager in time to be circulated with the agenda for the AGM.

As the quotations were both over the spending limit of the committee, they could not be approved by the committee. On 5th June 2009, the Applicants were advised by the body corporate manager that the date of the AGM had changed to 29th June 2009, and that the motion for repairs to Lot 24 would not be on the agenda. The scant explanation given was that Lot 23 had also reported termite damage “on her side of the common beam” so that further quotations would have to be sought in order to complete the job.

The Applicants do not see the relevance of Lot 23’s repairs in respect of Lot 24 because Lot 23 has a separate beam and roof structure; and the damaged load bearing timber beam in Lot 24 sits on a brick fire wall which separates both units. Further, the repairs to Lot 24 are urgent and should not be delayed.

They say that the body corporate cannot remove motions from the agenda. They also have no evidence of the termite repairs alleged to be required for Lot 23.

The result is that “the termite damage in the main load bearing beam in the kitchen has made the beam unstable.” The Applicants let out Lot 24 to tenants, and are concerned about their responsibilities as landlords, and the financial consequences if the tenant left.

In respect of an application for a stormwater drain, the Applicants have been refused this request by the committee on 24th September 2008. The committee responded that it did not consider the drainage problem to be a body corporate responsibility. The Applicants have at their own expense installed gutters and downpipes to the existing pergola roof behind Lot 24, but there is considerable run-off water coming from a steep bank behind Lot 24. Lot 23 has a large concrete spoon drain behind it which catches run off. Run off water and dirt continues to run onto the concrete area behind Lot 24.

In accordance with section 243(2)(b) Act submissions were invited from all lot owners.

Deborah Cranage, owner, says that she is of the view that any structural damage caused by termites should be covered by body corporate funds already paid by owners. It is a serious subject and should be discussed and rectified immediately.

Karen Scholfield (Ms Scholfield), owner of Lot 23, and the secretary of the committee says that she had her unit checked by the body corporate pest contractor Ecology Care which found live termites in the beam running into the firewall between Lots 23 and 24. They were also found behind the kitchen wall that adjoins the firewall that goes into unit 24. There is also a mud track in the ceiling between the two units. CTPS also checked Lot 23 and concurred. Both pest contractors thought it would be advantageous to deal with the termites in Lots 23 and 24 at the same time, and try to find the source of entry. Ecology Care would not give her a certificate saying that Lot 23 was termite free until it had inspected Lot 24.

Ms Scholfield also wanted to know more about the “non-compliance of the termite barriers” as alleged by the Applicants. However, the applicant Ms Allan refused a meeting with the two pest contractors and Ms Scholfield present. Ms Scholfield therefore had her own lot sprayed and sought a quotation for repairs, hoping to put the matter before the AGM.
The body corporate manager then advised that the quotations had not been received in time to be included in the agenda material, and that it would be better to call an extraordinary general meeting to consider such motions. Ms Scholfield suggested a committee meeting immediately after the AGM. She says Ms Allan did not return calls or correspondence about this. Ms Allan did not attend the AGM or the committee meeting held straight after it. An extraordinary general meeting to discuss quotations is still being organised for the earliest possible date. At this meeting there will also be a motion to have termite barriers re-installed as quickly as possible. Ecology Care says that the termite barriers were up to Australian Standards five years ago when they were installed but should now be placed nearer to the building. Ecology Care attended the AGM.

It was agreed at the committee meeting that termite damage rectification was the body corporate responsibility. However the point of entry is relevant. CTPS says the point of entry is outside the bathroom of Lot 24. The committee had decided last year not to have barriers re-installed and that may be the reason. Lot 24 also has a pergola attached to the rear of Lot 24 which “she has never seen body corporate or council approval for.” This structure does not have drainage that goes into body corporate drainage system but water from the roof and guttering falls onto the ground in three places, by drainpipes not installed by the body corporate but by the Applicants. The patio is angled towards the building and water runs along the back wall whenever it rains.

A plumber has said that a drain would not fix the ponding and flooding whilst the pergola carried water onto the ground. Ms Allan maintains that the majority of water flows down the embankment. The previous owner in Lot 23 installed a spoon drain which she has never seen flood and she has never had water running towards the rear of Lot 23 or pooling on her patio. The weep holes of Lot 24 are now also sealed. In order to be approved by Council, the weepholes would have to be unblocked and drainage pipes attached to the body corporate drains. Ms Scholfield has sought a quotation from Elk to rectify the pergola’s problems, and this was submitted to the committee “ to be presented to [Ms Allen] at the EGM as work she needs to have carried out to bring her structure up to standard whereby it does not pose a threat to termite reinfestation...” If after the pergola is rectified, water still seeps in from the hill, the body corporate could reappraise the water situation.

Ms Scholfield says that Lot 24 has also never “had an invasive inspection done by termite contractors”. In Lot 23 it was found that there were no termites in the bedroom walls after an inspection with a camera. The body corporate is committed to honouring its responsibilities but when confronted with large quotations for rectification work it has a duty to make sure that the claims are valid, and the work required; and secondly that the work when done will be effective. The committee wants contractors to quote on both Lots 23 and 24 together so that the body corporate makes the most informed decision. Ms Allan has refused to allow this to happen.

The body corporate says that it acknowledges that it is responsible “ for at least part if not all of the repairs to units that have suffered termite damage.” The body corporate engaged Ecology Care to install a termite barrier in 2004. In 2008, that company advised that the barrier was degrading and required renewal. At that time unit 8 suffered termite damage and has since had repairs done which will be met by the body corporate. However, the committee decided not to put forward a motion about a new barrier to the annual general meetings of either 2008 or 2009.

The committee is not confident that the scope of the works proposed in the quotations obtained by the Applicants is the result of termite damage and therefore the responsibility of the body corporate. It therefore did not think that presenting the quotations to owners at the AGM without further investigation was acting in their best interests. The owner of Lot 23 was waiting for quotations to repair her unit at the time of the AGM, and there was termite activity between the two beams of Lot 24 and Lot 23 which go into a firewall between the units. The body corporate has asked to view Lot 24 with termite inspectors and contractors on several occasions both to determine that the termites have been eradicated, and that the damage quoted on is termite damage. The body corporate wishes to resolve this problem as quickly as possible, but wants information to put to owners at the general meeting.

The committee is also concerned that the poor drainage at Lot 24 as a result of the construction of the pergola has created “ a haven for termites.” A termite inspection report undertaken by Ecology Care for the body corporate manager on Lot 24 on 1st July 2008 (the 2008 report) include recommendations which have not been addressed. Evidence of termites was visible “behind bedroom walls and bathroom.” Ecology Care at that time recommended redirecting the hot water overflow pipe away from the wall; that weepholes be kept clear ; recommended removal of “ all unnecessary timbers” , timber retaining walls and landscape timbers, remove heavy foliage from walls and remove stumps and logs in garden; renew the termite barrier; and a more invasive physical inspection.

In 2008 the Applicants installed guttering and installed downpipes which lead to nowhere. They also blocked the weepholes in Lot 24. The committee is of the view that the Applicants have not taken appropriate action to protect the unit from termite infestation, and have jeopardised the structure of the adjoining unit.

Ms Allan’s letter of 22nd May 2009 to the body corporate manager enclosing the two quotations says that the Applicants would be happy for Ecology Care to inspect the termite damage and to call her to arrange a time. However all attempts to arrange a time were unsuccessful.

The pest report provided by CTPS did not mention any other walls other than the laminated beam in the kitchen and dining room area, and a bottom plate in the bathroom area, and advised a “full destructive inspection,” should take place. The body corporate notes that the quotations from TRS and Elk both include the removal of linings in all rooms. The body corporate is of the view that to make such a finding, a camera inspection would be required. The quotation for repair work to Lot 23 is only $6,600 and does not include bedrooms. For the same scope of works as required in Lot 23, Elk has quoted $9,240 and Minc Services, another firm, has quoted $7,260. The Applicants have refused to allow Minc Services into Lot 24. The body corporate is frustrated at the lack of cooperation from the Applicants.

Ecology Care (EC) made an uninvited submission dated 13th July 2009. It says that it has been carrying out termite inspections for the scheme since 2004 when it put in termite barriers to all units. Lots in the scheme had a previous history of termite problems. From 2004 EC recommended that each lot had an annual inspection, and made a report giving recommendations for faults to be rectified throughout the complex so that the termite barrier would remain effective.

After heavy rain in 2008, EC noted that many units had high moisture problems, caused by leaking roofs, gutters not cleaned, broken down pipes, and timber lying in gardens. EC recommended renewing the barriers as the chemicals were degraded because of these problems.

There were termite treatments carried out to Lot 8 and Lot 20 which had particular problems. EC inspected Lot 23 at the request of Ms Scholfield and found that termites were entering from the roof area of Lot 24. EC contacted the body corporate manager in order to contact the Applicants so that it could ascertain the point of entry into Lot 23, but it was refused entry into Lot 24 by the Applicants. It also says there is “quite a lot of old damage prior to carrying out our termite barriers in 2004 that had not been fixed.” It noted the downpipes from the pergola discharging water onto the ground outside Lot 24 and that the weep holes had been siliconed up. This creates “ a very bad moisture problem ....creating a termite problem....” It says that all termite barriers will degrade if the soil is constantly wet.

The Applicants sought an extension of the time to 31st July 2009 in which they could exercise their right of reply, and enclosed 3 photographs. The photographs show a steep vegetated bank and a timber sleeper common property retaining wall behind Lot 22; and the vegetated bank with boulders but no retaining wall behind Lot 24, and a drainpipe leading away from Lot 24 into a patch of scrub ground.

They say that prior to contacting this Office they were not advised by the body corporate that it would accept responsibility for the termite damage. An email dated 16th May 2009 from the committee (Ms Scholfield writing) led the Applicants to think the opposite. The email said that it was the committee’s understanding that it was the owner’s responsibility to replace plasterboard walls, but that the body corporate was responsible for the structure. The Applicants say that it was not until a month later by email dated 14th June 2009 that they received different advice from the committee concerning the different responsibilities between a building format plan and a standard format plan.

They contend that it was only after lodging this application that the committee has taken interest.

CTPS has verbally advised that the termites’ point of entry appeared to be under the bath plate inside the bathroom. However, since this application was lodged, EC has now inspected Lot 24 on 20th July 2009 using a ‘borascope’ device which allows visual access but does not take photos, so Ms Scholfield’s remarks are “not accurate.” EC “verbally disagrees” with CTPS’ view about the point of entry but the Applicants have not seen any written report from EC.

They say that the pergola was in situ already when the Applicants purchased Lot 24 about 10 years ago. Their “solicitor’s searches” showed the pergola was council approved. On 30th July 2009 a licensed drainer and plumber, T. Stockman, who installed the guttering told the Applicants that there are two sources of water behind lot 24, the first comes from the steep embankment, and the second comes from the downpipe on the roof between both Lots 23 and 24, which carries stormwater from both properties. This downpipe was installed by the Applicants at their expense and goes into a shallow dirt drain which the applicant Ms Allan has tried to dig herself on common property. This continually fills with dirt and leaves. The pipe should be led into the existing stormwater grate at the base of the common property lawn area. Rainwater from this pipe runs well away from the rear brick wall of Lot 24. Water on the patio comes from the steep bank and their tenant has constantly complained about this.

The quotation obtained by the body corporate from Elk was under the pretence that the body corporate was going to pay for the work, and not to “rectify” the pergola, since the word “rectify” does not appear in the quotation. The quotation was manipulated.

The weepholes were filed by CTPS because they “were too low and should be filled” in the process of putting in poison for the termites. CTPS suggested that new weep holes should be made at a higher level. The Applicants have since removed the silastic from the weep holes, and say that it is ludicrous for the body corporate to say that blocking the weepholes for a few weeks contributed to any termite invasion.

They have no confidence in the body corporate accepting liability for water coming down the steep embankment. This bank has always been neglected, and old stumps covered with ivy “indicate that termites have been living there.” [1] Lot 22 and Lot 23 have a retaining timber wall, and Lot 23 has a concrete spoon drain.

At present there is a metal prop installed under the kitchen beam to keep the ceiling from falling down on the tenant. The prop is costing the Applicants $8 per week.

They have obtained two builders quotes which “confirm extensive termite damage to internal walls.”

Past experience has shown that the body corporate will use its preferred contractor if the body corporate is reluctant to approve any works. The body corporate refutes the quotations obtained by the Applicants and the preferred contractor quotes instead directly to the body corporate without input from the Applicants. They have not even received copies of these quotations. They ask this Office to nominate a contractor.

I sought further information from the Applicant by 24th August 2009. She provided a copy of the report dated 20th July 2009 from Ecology Care, which she had to seek from the body corporate, and revised quotations from TRS (now dated 8th August 2009) offering the same work for $19,316 in lieu of $18,931; and Elk, still dated 18th May 2009 but offering the same work for $14,600 in lieu of $12,800. TRS has added the statement as follows - “ Please note: The extent of the structural damage was found by doing an invasive inspection where hole (sic) were cut into the wall linings in various places to access the timber damage.” Elk did not state a method by which the original damage was assessed.

The difference from the 2008 report is that EC found termite damage in “main beam in kitchen/bathroom/toilet/rear bedroom and main bedroom bottom plates eaten, extent of damage from the bathroom/toilet area.” Damage to timber was found to be “extensive and severe.” A termite nest was located in a dead tree at the left hand side of landscape timbers. This was described as “old termite activity.” EC also stated that the “showers (sic) need to be resealed” and that unlike the earlier report, there were visible leaks found.

In the previous report, EC found that the drainage seemed to be “adequate” but in the later report, EC states: “Inadequate, broken downpipes and blocked gutters and downpipes draining on ground.” The previous report stated that the weepholes were allowing free flow of air, but the later report stated that the weep holes were blocked with silicone. At section 5.10, the recommendations are as follows –

The inspection was described as a “visual inspection” only and not an invasive physical inspection

The Applicant’s understanding is that she submitted a motion for repairs to the AGM and that is why she had to submit the quotations by a certain date, so that they could be included in the agenda.

On 17th August 2009 the Applicant received a phone call from Minc Services (Minc) which said it was authorised to undertake repairs to Lot 23 and that the body corporate wanted Minc to do repairs to Lot 24 at the same time. Minc had a “scope of works” for Lot 24. The Applicant asked Minc to confirm in writing what method of assessment of the damage would be used before allowing it to inspect. The Applicant also asked for a copy of any Minc quotation to the body corporate. The body corporate manager subsequently sent the Applicant a copy of Minc’s scope of works which the body corporate said were lifted straight from the quotations that the Applicant had provided to the body corporate.

The Applicant responded the following day inquiring how Minc was authorised since there had been no committee meeting. She says that there are “different processes and requirements” for different committee members, of which she is one. She is concerned that the number of quotations which may required of her could be unlimited and she has to take time off work to organise inspections of Lot 24.

The Applicant is not satisfied that the Minc quotation will result in the performance of the same works as that of Elk and TRS, if the methods of assessment are different. The Applicant has not been provided with a copy of the quotation by Minc for lot 23 which she has asked for, and is of the view that as a committee member she should be seeing all quotations provided to the body corporate for any works. She again asks for intervention from this Office as to choice of builder.

In this matter the Applicant requires with some urgency to undertake repairs of damage caused by termites to her lot. Before commencing, she wants the approval and/or confirmation that the body corporate will pay for those repairs. The body corporate acknowledges that it must pay for structural damage caused by termites, but it has, the following concerns-

The Applicant did not herself draft a motion to the proposed annual general meeting on 24th June 2009, but on talking to the body corporate manager provided two quotations for the work to be done, understanding that these would be put forward with a motion that Lot 24’s repairs would be met by the body corporate. However, in the event, the annual general meeting was postponed for a week because of other termite damage found in an adjacent lot, and the Applicant’s quotations were not put to the body corporate, nor was a motion about repairs to Lot 24 drafted by the body corporate manager for the annual general meeting on 29th June 2009. The body corporate manager wrote to the Applicant inter alia -

“The motions for repairs to unit 24 and painting will not be included on the agenda.”

In my view, this was quite wrong and contrary to section 69(2) Standard Module which requires that if a motion is submitted, it is to be included on the next general meeting agenda on which it is practicable to include the motion. For an annual general meeting, the motion must be received by the secretary before the end of the financial year. The Applicant’s request, coupled with two quotations, was received by the body corporate manager in time to be placed on the agenda of the annual general meeting, but was deliberately omitted by the body corporate because it appeared that further termite damage might also have to be discussed. That further damage might have been put on the agenda of a subsequent extraordinary general meeting and the Applicant’s request, accepted as a motion by the body corporate manager, should not have been ignored. The body corporate manager cannot decide that it is the body corporate’s “best interests” to withhold a motion from a general meeting.

If the repairs to Lot 24 were to be undertaken at the same time as other repairs, then the Applicant’s motion, if passed, need not have been acted upon until the other repairs were also approved by the body corporate.

The concern in this matter is the element of control which a body corporate has over an owner’s lot where the body corporate is responsible for repairs. If the body corporate is paying, then the body corporate naturally will want to inspect the damage and obtain its own quotations, and if multiple works are required, then it is likely to be advantageous for the body corporate to get all work done by the same contractor. However, in an owner’s home, an owner will want to make sure that the extent of the damage is recognised, and to be able to instruct his or her own preferred contractor. This is not a new problem, and the legislation provides the answer that the body corporate at a general meeting must decide on the choice of contractor.

The body corporate’s liability for an owner’s lot is limited and concerns only structural repairs in a Building Format Plan. Section 159(2)(b) Standard Module says that where land is not common property, the body corporate must maintain in a structurally sound condition - foundation structures, roofing structures providing protection, and essential supporting framework, including load-bearing walls. Items such as sealing a shower cubicle (especially if it was not previously sealed) are not going to be the liability of the body corporate. If however, the failure of the structure has contributed to the damage, or the repairers must remove tiles, wall board etc. to get to the structure, then such tiles or coverings as are removed will fall to be replaced by the body corporate, as part of the consequences of the structural repair.

Further, despite the body corporate’s obligation, if a person’s actions “cause or contribute to damage or deterioration to part of the lot” which the body corporate is liable to maintain, then the body corporate many recover its reasonable costs for carrying out the maintenance. (Section 159(2)(4) Standard Module.) Utility infrastructure installed by an owner also remains the responsibility of the owner and not the body corporate if it supplies utility infrastructure only to the owners’ lot. (Section 159(3)(b) Standard Module.)

The EC report of 20th July 2009, obtained by the body corporate since this application was lodged, demonstrates to me that there is “extensive and severe” termite damage to the Applicants’ lot although, save for the main beam in the kitchen -

“main beam in kitchen/bathroom/toilet/rear bedroom and main bedroom bottom plates eaten, extent of damage from the bathroom/toilet area.”

does not explain where in the mentioned rooms the damage is. The inspection done with the borascope” revealed more damage than the inspection carried out on 1st July 2008 which found “damage behind bedroom walls and bathroom” although not necessarily exclusively so.

The Applicants’ two quotations are from one firm which by its name claims to be “termite repair specialists”, and another who also lists “termite damage” as an area of expertise. Elk quotes for work to the lounge room which is not an area listed as damaged by EC, although EC’s list is not necessarily exclusive. TRS does not propose works in the lounge room, although both bedrooms are referred to and Elk refers only to one bedroom. Both firms appear to think that the termites are entering through the bathroom, and say that the kitchen interior main beam is now structurally unsound.

Section 163 Act gives the body corporate power to enter a lot on giving the occupier and owner seven days notice, in order to see if work which the body corporate is required to carry out needs to be done; and also to remain on the premises and carry out such work as necessary. The body corporate did not take advantage of this power given in the legislation. I am of the view that this power is given so that when the body corporate finds itself in exactly the situation which has arisen in this scheme, it can see for itself what work is required.

However, I am satisfied that the body corporate’s preferred termite prevention contractor EC, has now viewed Lot 24 and noted extensive termite damage, and that the work listed on the quotations obtained by the Applicants is work that needs to be done. As stated above, where that work is structural, is framework in roof or walls, or is décor damaged by the need to access such structure and framework, then it is the responsibility of the body corporate to repair and maintain.

However, I am of the view that the Applicants have contributed towards the damage in two ways, as has the body corporate. Firstly the Applicants have installed downpipes which allow rain water to run onto the ground near the house, and secondly they have failed to attend to the recommendations in the 2008 report from EC and/or failed to notice the damage earlier, possibly because there is a tenant in the property.

Equally, it is also relevant that in 2008 and 2009, the body corporate ignored its own consultants that the existing termite barriers had a limited life and were deteriorating partly because of wet conditions. No motion was put to the annual general meetings for two years running about termite inspections or renewing the barriers. Secondly, the body corporate has acquiesced in the Applicants keeping the downpipes which the body corporate says are connected to an unlawfully built pergola and which run onto common property, and have taken no steps to remedy the inadequate and apparently unlawful drainage arrangement which the Applicants have provided. Even if the pergola is lawfully built (and there is no evidence that it is not) it appears that there was no consent obtained for the downpipes which were installed by the Applicants, and which discharge onto common property.

I consider that it is almost impossible to quantify the level of “fault” on either side. I am satisfied that insufficient care has been taken both by the Applicants and the body corporate to prevent termite damage in buildings which are highly attractive to termites, being situated at the bottom of timbered slope, in an area of high moisture which does not flow away.

This may be party because of the lie of the land. I do not consider the Applicants, as the owners of the Lot, are responsible for the drainage of water from another part of scheme land. I shall consider the matter of drainage a little later.

In respect of the repairs to Lot 24 listed by both Elk and TRS, I am satisfied that such repairs are required. The Applicants must allow Minc, or any other professional builder of the body corporate’s choice to enter Lot 24 and quote for the same works as on the Elk and TRS quotations. All quotations as desired by the Applicants and the body corporate must then be listed as motions in the alternative to a general meeting. The general meeting must be held within 6 weeks of the date of this order, with an explanatory note that an adjudicator of this office has ordered that the repairs be undertaken as soon as possible after the meeting, that is, the body corporate is not able to vote on whether or not the repairs will or will not be done, but will be required to vote only for the choice of contractor. I make no order about the repairs to Lot 23 which are not a part of this application, but it might give easier access for builders if the main beam in both kitchens was repaired at the same time. However, the repairs to Lot 23 must not hold up the repairs to Lot 24.

The cost of the repairs is to be met by body corporate funds and includes funding from the Applicants, or if any special contribution is to be levied, it shall include contribution from the Applicants in shares proportionate to the contribution schedule lot entitlements for Lot 24. That is, the Applicants are not excluded from contributing a share for the payment of the repairs, contrary to the tenor of some parts of the application. The body corporate consists of 24 owners and whilst it is legally a separate entity, it is funded only by those 24 owners. Costs to the body corporate are costs to the owners in the scheme.

In respect of the application for a permanent drain to be installed, there is insufficient evidence to make any determinative finding about a remedy. A request for a permanent drain and connection to it was refused by the committee on 24th September 2008 but it does not appear that the Applicants have ever proposed this as a motion to a general meeting. The Applicants may propose as a motion to a general meeting any remedy and quotations for it which they have, which have not formed part of this application. There has been hearsay only from the Applicants’ plumber who has apparently made some suggestions.

In the circumstances of the lie of the land, and the claim by the Applicants that water floods onto the back of the house from the adjacent wooded slope, (although it may also flood from the rainwater on the roof), I consider that the body corporate should within 6 weeks of the date of this order, engage an appropriate person, such as a hydraulic consultant, to investigate and report on the drainage adequacy of the common property in the vicinity of Lot 24, and I so order. The body corporate would also be responsible to have any work carried out that is recommended by the engaged person and which is a body corporate responsibility under the legislation, but the Applicants will be responsible for any recommendations by the engaged person which are their responsibility under the legislation either because it does not relate to body corporate infrastructure or because the Applicants have installed their own infrastructure, which services only their lot. (I note that the Applicants say that their installed downpipes carry water from Lot 23’s roof as well as their own.) The report to the body corporate should include recommendations of the work considered necessary to improve any identified drainage problem.

I have not placed a time frame on the body corporate to do any recommended work. However, this work should be carried out as soon as practicable. The time for doing the work may be dependent on factors such as the extent and nature of the work, the proposed cost and the funds available to the body corporate. However, the body corporate should be guided by the recommendations and findings of the report.

[1] This was not alleged in the application and the respondents have not had the opportunity of commenting on this.

Number of Scheme:	7132
Name of Scheme:	Cannington Court Garden Villas
Address of Scheme:	24 Cannington Place HELENSVALE QLD 4212

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Cannington Court Garden Villas [2009] QBCCMCmr 323 (28 August 2009)