Yallock [2000] QBCCMCmr 152 (23 March 2000)

P G DanielsREFERENCE: 0232-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10698
Name of Scheme:	Yallock
Address of Scheme:	164 Frank Street, LABRADOR QLD 4215

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

Gloria Margaret Gal the owner of lot 6

1. P G DanielsI hereby order that the Body Corporate must within three months of the date of this order engage a suitably qualified tradesperson or company to undertake and complete the sealing of the brick walls on the balcony of lot 6 to prevent water penetrating through the brick walls.

2.

I further order that the owner of lot 6, Gloria Margaret Gal, is to allow access to lot 6 by the Body Corporate and the tradesperson or company engaged by it for the purpose of completing the work 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 to the lot in the course of completion of the work.

3.	I further order that within two months of the date of this order the Body Corporate must pay to the owner of lot 6, Gloria Margaret Gal, the sum of $300.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0232-1999

“Yallock” CTS 10698

The applicant, Gloria Margaret Gal, the owner of lot 6, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	The Body Corporate prevent water entering my unit walls by erecting an awning at the front of the unit;

2.	The Body Corporate to replace my carpet;

3.	The Body Corporate pay me (i) $50 for services rendered in November 1998; (ii) $272 for washing the stairwell walls in February 1997; (iii) $200 for being on the Committee for 2 years in 1997 and 1998; (iv) $30 for cleaning up leaves in 1998.

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)).

The applicant seeks orders 1 and 2 in respect of a water penetration problem and order 3 in respect of certain payments she believes she is entitled. As they are unrelated I will deal with them separately.

Orders 1 and 2 – Water penetration

The applicant complains of water penetrating into the living room of her lot. The problem has been occurring for a number of years. She states that the problem only occurs where rain comes from the direction of the ocean and is falling at an angle rather than straight to the ground.

I have inspected the lot. I was informed by the applicant that she has actually seen water trickling down the wall surrounding the door leading onto the balcony when rain described above occurs. The rain can soak into the carpet of her living room up to three metres from the balcony door and cover the entire width of the living room.

As part of the investigation, the respondent Body Corporate was required to obtain a building report that detailed what the defects are and how they can be addressed.

A report was obtained from Jonco Construction Services Pty Ltd dated 13 January 2000. It relevantly states:

“Causes of water ingress

1.	Porous calsil bricks drawing in water which is being transferred across cavity by condensation or ineffective wall flashings.

2.	Aluminium door construction not able to handle wind driven rain.

3.	ineffective window/door lead flashings allowing water to traverse cavity.

4.	Sill detail at doorway inadequate – allowing water to capillary attract through.

Methods of rectification

Without demolishing brickwork we would recommend

1.	Sealing of masonry with a compatible sealer. We recommend sealing whole eastern elevation exposed to weather.

2.	Construction of an awning/gutter/downpipe system over the balcony area to Unit 6 to alleviate effects of wind driven rain.

3.	Investigate, test and seal if necessary aluminium door frame.

4.	Replace carpet on completion.

Budget estimate for items1-4 $3500”

Jonco states that the calsil bricks on the balcony have become porous and advises that they be sealed. Other problems and how they may be addressed are also stated.

The question that needs to be resolved is who is liable to address the water penetration problem and what is the extent of that liability.

It is important to initially note that the balcony is part of the applicant’s lot up to the height of the ceiling of the remainder of the lot. This is clear from examining building units plan 4489. This means that all of the brickwork on the balcony of the applicant’s lot is part of the lot. Additionally, the door leading onto the balcony is also part of the lot.

The liability of the Body Corporate to maintain structures within a lot is provided by section 109(2)(b) of the Body Corporate and Community Management (Standard Module) Regulation 1997 which provides as follows:

(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; and

(b) maintain the following elements of scheme land that are not

common property in a structurally sound condition—

(i) foundation structures;

(ii) roofing or other covering structures providing protection;

(iii) essential supporting framework, including load-bearing

walls.

It will be observed that section 109(2)(b)(iii) of the Regulation provides that the Body Corporate must maintain essential supporting framework including load-bearing walls in a structurally sound condition.

The wall on the on the balcony is essential supporting framework and/or a load bearing wall and so the Body Corporate must maintain the wall in a structurally sound condition. In my view that wall is not in a structurally sound condition as I accept water is penetrating through it into the remainder of the applicant’s lot. In my view the Body Corporate needs to address this problem.

In my view the appropriate way for the problem to be addressed is for the wall to be properly sealed. I do not propose making an order requiring that the Body Corporate construct an awning, guttering and downpipe. The applicant has informed me that the brickwork has previously been sealed but this has not successfully treated the problem. I am of the view that a properly applied sealant should address the problem. Any work that needs to be done to the door or the door framework on the balcony is the responsibility of the applicant.

I will make an order that the Body Corporate undertake the sealing work. I will limit my order to the walls on the balcony of the applicant. I note that Jonco advises that the whole eastern elevation should be sealed. It is a matter for the Body Corporate to determine if it will go further than the terms of my order and also seal other areas. I suggest that the Committee give the matter consideration.

I will now consider the applicant’s claim for damage to her carpet. During my inspection, I did observe that the carpet had been damaged particularly near the balcony door. I accept that the damage occurred due to water penetration. However, the carpet is quite old. I did observe that throughout the lot not affected by water penetration the carpet was certainly showing signs of wear and tear. The applicant told me that the carpet was laid approximately 10 years ago. I am inclined to grant the applicant a small award of damages rather than order that the Body Corporate replace her carpet. The carpet is already a substantial way through its useful life. I do not think the Body Corporate should have to replace it. I have also taken into account that the water penetration problem is not entirely the fault of the Body Corporate due to the porous bricks. Jonco indicates in its report that certain defects with the door have also contributed. I have also considered that the applicant has used cushions and other agents to mop up the water. These have been thrown out, at a cost to the applicant. I have decided to award $300 damages. I am of the view that the award of these damages is “just and equitable” and can be made pursuant to section 223 of the Act. In addition, I am empowered to award the damages pursuant to section 227 of the Act as I believe on reasonable grounds that the Body Corporate contravened section 109(2)(b) of the Regulation.

Order 3 – Payments

I will deal with each amount separately.

1. $50 for services rendered in November 1998.
2. $200 for being on the Committee for two years in 1997 and 1998

It was decided at a Committee meeting on 30 January 1999 to pay these amounts by reduction of the amount of outstanding contributions owed by the applicant. The applicant has already been given value for the services performed.

3. $272 for washing the stairwell walls in February 1997

The applicant has provided no evidence of a contractual arrangement to do this work for the amount stated. Mrs Williams states in her submission that:

“An a/c has NEVER been received.

The Committee has not discussed this at all so G.G [the applicant] apparently voluntarily washed the walls.

On the 14.3.97 Mrs. Gal phoned G.W. and advised that she had washed the walls in the stairwells.

There was no mention of payment.

On 28.11.1998 G.G. advised those present at the AGM she was owed $170 for 2 days cleaning walls 18 months ago. NOTE the difference in amount owing.

4. $30 for cleaning up leaves in 1998

Once again the applicant has provided no evidence of a contractual arrangement to pay this amount.

The applicant has already been given value for items 1 and 2 above. In respect of items 3 and 4 I have no jurisdiction to award damages even if the applicant was entitled to be paid. An adjudicator does not have jurisdiction to award damages in respect of a dispute between a Body Corporate and a service contractor: section 182 of the Act. Disputes of that nature need to be determined by a Court or Tribunal of competent jurisdiction.

However, on the evidence before me the applicant did not establish a case for payment.

I will not make any order requiring the Body Corporate pay damages in respect of the above four items that I have considered as part of order 3.