Acapulco [2000] QBCCMCmr 124 (7 March 2000)

P G DanielsREFERENCE: 0520-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10436
Name of Scheme:	Acapulco
Address of Scheme:	2 Thornton Street SURFERS PARADISE QLD 4217

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

Dita Holdings Pty Ltd and Edward and Clara Buchanek the co-owners of lot 6

1. P G DanielsI hereby order that within three (3) months of the date of this order the Body Corporate is to engage a suitably qualified tradesperson or company to complete and undertake the:

(a)	Waterproofing of the balcony slab of lot 6 so as to prevent further water penetration to the remainder of lot 6 and through the slab to the common property below;

(b)	Installation of two (2) new stormwater outlet pipes vertically through the slab of lot 6 through to the stormwater system or garden area.

2.

I further order that the owners of lot 6, Edward and Clara Buchanek and Dita Holdings Pty Ltd (the owners), are to allow access to the Body Corporate and the tradesperson or company engaged by it, for the purpose of completing the work detailed in Order 1 PROVIDED THAT the same is to be at the cost of the Body Corporate and is to be done in a professional manner using proper materials and in such a way as to be as unobtrusive as possible, including the repair of any damage done to the balcony or lot in the course of completion of the work.

3.	I further order that the Body Corporate must pay to the owners the sum of $1000 within two months.1y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0520-1999

“Acapulco” CTS 10436

The applicants, Dita Holdings Pty Ltd and Edward and Clara Buchanek, the co-owners of lot 6, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	That the body corporate restore the planter box on the boundary of the Lot 6 balcony to its condition prior to 1994;
2.	That the body corporate comply with the rectification work required by referee’s order 127-94;
3.	That the body corporate pay to the owner of Lot 6 $10,000.00 for damage to carpet, furniture and loss of rental income;
4.	Any further order that the adjudicator considers appropriate in the circumstances.

Section 223(1) 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 this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

Water has been penetrating into the applicants’ lot from the balcony. The Body Corporate has agreed to waterproof the balcony up to and including the hobs that separate the balcony from the lot. The parties have agreed on a consent order to this effect.

There are two other issues that need to be addressed as a result of this application. Firstly, a damages claim and secondly, who is responsible for clearing rubbish on the balcony. I will address each matter separately.

Damages Claim

The applicants seek damages under three heads, loss of income, damage to a chair and damage to carpet. I will consider each separately.

Loss of Income

The applicants state that the lot was let until October 1998. They state that the rental income for the year 1994 was $5,128 whereas in the years 1995, 1996 and 1997 the average gross rental was $3,067.00. This is an average shortfall of $2,051.00 per year, or $171.75 per month.

They seek damages for the period January 1995 to October 1998 at $171.75 per month. As this is a 46 month period the damages they seek is $7,900.

The applicants seek damages in the years after 1994 as they state that during 1994 the Body Corporate performed work on the planter box surrounding the balcony which increased water flow onto the balcony. The Body Corporate removed plants from the box and constructed pipes onto the balcony. The Body Corporate performed this work rather than comply with an order for waterproofing the balcony that was made in 1994. The applicants state that prior to that work, their lot would occasionally be penetrated with a small amount of water. However, after the work, the water penetration was more severe and frequent. It left a bad odour which discouraged people from letting the lot.

I reject the applicants’ claim under this head of damages for two reasons. Firstly, I do not believe that I can make a “just and equitable” order as the applicants did not seek to address this problem when it began. The work of which they complain was performed in 1994. This application was brought five years after the work. In my view it is not proper to allow damages to accumulate without taking any action.

Secondly, I am not satisfied that the water penetration caused the decrease in rental income. There has been no evidence provided from persons who attest to the alleged unpleasant odour in the lot and not letting the lot for that reason. The Body Corporate made a submission in respect of this application through its solicitors, Robinson and Robinson. It is stated at paragraph 14 of that submission:

“The Applicants unit is on the first floor of the building. Such a low level is not a popular level with holiday makers and the units at such a level are only occupied in times of peak occupancy e.g. school holidays.”

This is another possible explanation for the rental in the years 1995 to 1998.

Chair

The applicants claim that a leather chair was damaged as a result of the water penetration. They have provided a receipt in the sum of $1230. Robinson and Robinson have made the following statement at paragraph 16 of their submission:

“The claim in respect of the leather suite is fallacious. On the assumption that there has been water entry to the carpet, to assert that the water damage required the replacement of all leather including all seat cushions, and the left arm top to reweb all bodies and to repair scratch peel areas would have required the water to have reached a depth in access of 1 metre. This clearly is nonsense.”

I agree with this submission. Clearly, the applicants cannot be awarded damages for work done to the suite unrelated to the water penetration.

At the bottom of the receipt, there is an indication of some work that was done as a result of water damage. I am inclined to award some damages. I think an appropriate amount would be $200.

Carpet

The applicants have provided photographic evidence of damage to the carpet near the balcony due to the water penetration.

They have provided a receipt for carpet cleaning in the sum of $269 dated 22 April 1998.

They state that it is necessary to replace all of the carpet in the lot. It is not practical only to replace the water damaged area as the carpet in the lot is joined together. They state it is not possible to cut off the damaged area and replace it with the exact same carpet. They have provided a quote for replacement of all the carpet in the sum of $2,550.00.

In my view the applicants must accept some responsibility for damage to the carpet as they have waited a long time to bring this application. As I have stated above, it is not appropriate to allow damages to accumulate without taking action.

I was informed by Mr Niall of Robinson and Robinson that the current carpet was laid in 1994. The carpet has already been used for 5 or 6 years. I also take this into account.

I am of the view that the applicants are entitled to some damages under this head. I do not propose to award the full sum of $2,550.00. Taking into consideration the factors I have detailed above, I award the sum of $800.

Basis for awarding damages

I have awarded $200 for damage to the chair and $800 for damage to the carpet. If there was a membrane between the balcony and the lot that failed, liability arises based on section 108(2)(a)(iii) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Regulation) which provides:

(2) To the extent that lots included in the scheme are created under a building format plan of subdivision, the body corporate must—

(a) maintain in good condition—

(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that provide protection for lots or common property;

The membrane, if it existed at all, was failing at the join of the balcony and the lot. At this location it is part of the lot and so the above section becomes relevant.

An alternative basis of liability is section 129 of the Act which provides:

ú

Nuisances

129. The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

I accept the evidence of the applicants that the Body Corporate replaced plants with stones and installed pipes from the planter box in 1994. I also accept that this resulted in the water penetration being more frequent and substantial.

Consequently, I find that the Body Corporate contravened section 129 of the Act and is liable in damages as discussed above.

Garbage

There has been substantial argument about who is responsible for the removal of garbage/leaves etc that fall on the balcony of the applicants’ lot. There are two sources, from lots above the applicants’ lot and from leaves etc from surrounding trees.

The issue is of some importance because garbage does accumulate on the balcony which in turn can block drains. This, of course, has potential to cause the water to increase in volume and flow into the lot.

The Body Corporate claims it is the responsibility of the applicants to keep the drains clear as the top of the drains that get blocked are part of the lot.

The applicants claim that it is the Body Corporate’s responsibility as it is not enforcing by-laws preventing other lot owners from littering and not ensuring leaves etc from trees do not fall onto the balcony.

It is my view that this issue must be considered from a practical point of view. The applicants must accept that it would be very difficult for the Body Corporate to enforce the littering by-law in these circumstances. If a piece of litter falls from a higher lot and is subsequently found on the applicants’ lot, how do you determine from which lot it fell? It seems to me that if this is a problem then the Body Corporate through its Secretary or Manager could write to the owners of the relevant lots and ask them to be more vigilant in this area.

Leaves etc from surrounding trees fall into a different category. It would be unacceptable for a significant amount of leaves etc to fall onto the applicants’ balcony from this source as these trees would be on common property and subject to Body Corporate control. I am uncertain about whether the leaves etc are a significant factor in the rubbish accumulating on the balcony. I think the applicants must accept a small amount of leaves due to the location of their lot near the ground. However, if it became excessive, then I think the Body Corporate should take action and cut down, trim or relocate the offending trees/bushes.

As a matter of practicality, I think the applicants should clear rubbish on the balcony. It is their balcony which they own. From a legal perspective section 119 of the Regulation would make them liable. However, if the views I have expressed above are followed, then the problem may be acceptably controlled.

Conclusion

I will make the consent order and order that the Body Corporate pay the applicants $1000.