Heritage Manor [2009] QBCCMCmr 42 (9 February 2009)

Last Updated: 9 March 2009

REFERENCE: 0829-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15428
Name of Scheme:	Heritage Manor
Address of Scheme:	964 Logan Road HOLLAND PARK QLD 4121

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

Michael Jaa-Kwee and Fildent Pty Ltd, the Owner(s) of lots 1 and 2 respectively

I hereby order that, within one month, the body corporate for Heritage Manor (respondent), must reimburse Fildent Pty Ltd (applicant) the amount of $2,000 for termite treatment that was the responsibility of the body corporate but was paid for by the applicant.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0829-2008

“Heritage Manor” CTS 15428

Application

Heritage Manor Community Titles Scheme (Heritage Manor) is a 14 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Michael Jaa-Kwee and Fildent Pty Ltd, the Owner(s) of lots 1 and 2 respectively (applicants) seeking orders against the body corporate for Heritage Manor (respondent). The applicants are seeking to overturn a vote by owners that refused to approve chemical termite treatment around unit 1. The applicants say that the treatment was urgent due to the presence of termites. Ecology–Care was therefore engaged at a cost of $2,000, which was paid by the owner or lot 1. Orders are sought to require the body corporate to reimburse this amount to the owner of lot 1.

Decision

Submissions

The main grounds in support of the application, provided on behalf of the applicants, were to the effect that a termite infestation originating from common property has required pest control work. Specifically, that the body corporate should have been responsible for this work but refused to perform the work

All owners and the body corporate were given an opportunity to provide written submissions. The only submission received by this office was from the chairperson. This submission was to the effect that it appears that the termites originated from common property adjacent to the building and that he considers the applicant should be reimbursed subject to providing an invoice or proof of expenditure.

Applicable law

Legislation relevant to the present dispute has provisions to the effect that:

• Subject to limited exceptions, the body corporate must maintain common property in good condition (Standard Module, 159(1));
• Subject to some exceptions, an owner of a lot must maintain their lot in a good condition (Standard Module, 170(3)); and
• For lots under a building format plan, the body corporate must maintain foundation structures, roofing structures and essential supporting framework in a structurally sound condition even if these form part of the lot rather than common property (Standard Module, 159(2).

Findings

I have reviewed the material supplied with the application as well as a copy of the registered plan for Heritage Lodge. This plan shows that the scheme contains three buildings. Units 1 is in a building by itself, units 2 and 3 are in a separate building to the east, and units 4 to 14 are in a large building to the west. Despite the units comprising Heritage Lodge being in separate buildings, because it is registered under a building units plan, owners will share a common responsibility for the structural soundness of the foundations, walls and roof of each of the buildings. Further, the exterior boundaries of each unit are typically at the centre of the external walls so that each building is completely surrounded by common property.[1]

The body corporate has a duty to maintain common property in good condition and this includes proper pest control.[2] I am satisfied from the submissions of the applicants and the chairperson that termites were present and that termite treatment was appropriate. Further, I am satisfied from correspondence provided and the minutes of the 2008 annual general meeting that the owner of lot 1 requested the body corporate perform termite treatment but owners voted against the treatment. I have further reviewed a tax invoice from Ecology-Care and am satisfied that a perimeter barrier was sprayed for termites at a cost of $2,000 paid by unit 1. There is nothing to suggest that the treatment was inappropriate or was not performed by an independent contractor.

I am therefore satisfied that the owner of unit 1 has paid for pest control work that should have been performed by the body corporate. The body corporate was given the opportunity to perform the work itself but failed to do so. In the circumstances, it is just and equitable to require the body corporate to reimburse the owner of unit 1 for the cost of this work.[3]

Order

For these reasons, I make the order above.

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[1] Refer Land Title Act 1994, section 49C.
[2] Refer Panorama 22, Order 0461-2001, RA Meek, 19 December 2001.
[3] Refer Surfers Aquarius, Order 1044-2006, D Toohey, 28 September 2007 at page 4.