Newmarket Lodge [2000] QBCCMCmr 223 (22 May 2000)

RA MeekREFERENCE: 0777-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13001
Name of Scheme:	Newmarket Lodge
Address of Scheme:	6/36 Terrace Street NEWMARKET QLD 4051

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

Adele Nell Carr, the owner of lot 6

RA MeekI hereby order that within six (6) weeks of the date of this order, the body corporate of Newmarket Lodge shall pay to the owner of lot 6, Adele Nell Carr, the amount of $1490 by way of reimbursement of the amount paid by her to ANSA Plumbing by Carr in respect of invoice no. 11412, for repairs to pipes which were the responsibility of the body corporate. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0777-1999

“Newmarket Lodge” CTS 13001

The applicant Adele Nell Carr, the owner of lot 6, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) which determines responsibility to pay for the renewal of the hot water pipe servicing the applicant’s lot. The applicant further seeks an order determining responsibility for payment of two accounts. The first for $1490, and the second for $137.50.

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)).

This office sought submissions from the body corporate in respect of this application. To date, no submission has been received. I intend to determine this application without having the benefit of the body corporate’s view regarding this matter. Clearly though, the body corporate considers that the repairs, and the responsibility for payment of the same, are the responsibility of the applicant.

The applicant considers that she is not responsible for payment of the two accounts. The applicant sets out the following reasons in support of this –

1) There is no separate water supply to any of the units in the building;

2) All units are supplied from a single main water supply through a single meter at the boundary;

3) There is no stop cock or separate valve at the main water supply pipe;

4) That unit owners previously voted to retain “communal use of the water supply”;

5) That the water pipes inside the concrete and brickwork of the applicant’s unit and unit 3 suffered metal fatigue from work undertaken by the Main Roads Department to Newmarket Road several years ago, which metal fatigue has lead to the fracturing of those pipes.

I will state that points 4 and 5 raised by the applicant are irrelevant to the determination of this matter. The issue of how a scheme determines to invoice owners for the water supplied to each lot, either based on actual consumption of each lot using separate meters, or by each lot owner paying an equal amount, is not relevant to the issue of responsibility for repair and payment.

Moreover, if the applicant considers that work undertaken by the Main Roads Department has contributed to the damage to the pipes, then this responsibility will need to be pursued separately, as this office does not have jurisdiction to make orders against third parties.

I now return to the issue of determining responsibility for repair of the pipes servicing lot 5, and the responsibility for payment for this.

The plumber’s report states that the water was initially discovered “coming out under the door of unit 6”. It was subsequently found that the hot water pipe had burst in the concrete floor slab, presumably the slab which separates lots 3 and 6. The plumber was required to run a new hot water pipe from the “hot water service in garage on ground level to unit 6 on second floor”.

The starting point for determining responsibility is section 109 of the standard module which states that the body corporate must maintain common property in good condition. It must therefore be determined whether the pipe which burst was common property within the scope of section 109.

Section 21 of the Act provides that –

Utility infrastructure as common property

21.(1) Common property for a community titles scheme includes all utility infrastructure forming part of scheme land, except utility infrastructure—

(a) solely related to supplying utility services to a lot; and
(b) within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and
(c) located other than within a boundary structure for the lot.
(2) However, common property does not include utility infrastructure positioned within common property if—
(a) its positioning is the subject of an agreement to which the original owner or the body corporate is a party; and
(b) under the agreement, ownership of the utility infrastructure does not pass to the original owner or body corporate.
Example of utility infrastructure for subsection (2)—
Cable television wires positioned in the service shaft of a multistorey building that is scheme land for a community titles scheme, if the wires remain in the ownership of a cable television provider.
(3) In this section—
“boundary structure”, for a lot included in a community titles scheme, means a floor, wall or ceiling in which is located the boundary of the lot with another lot or common property.

“Utility infrastructure” is defined to include pipes by which lots are supplied with a utility service. “Utility service” includes water reticulation or supply.

I conclude that the pipe was solely related to supplying utility services to the applicant’s lot. Sub-paragraph (a) is therefore satisfied. However, the pipe is located in the concrete slab floor separating lots 3 and 6. The pipe is therefore not “within the boundaries of the lot” or “located other than within a boundary structure for the lot” as set out in (b) and (c). A boundary structure is defined as a floor, wall or ceiling in which is located the boundary of a lot with another lot or common property.

The requirements of section 21(1)(b) and (c) are not established, and therefore the pipe is common property within the extended definition of that term under section 21 of the Act. Given this, the body corporate is responsible for repair of the pipe as common property under section 109 of the standard module. Given that the applicant has paid the account for $1490 from ANSA Plumbing, I intend to order that the body corporate reimburse the applicant this amount.

There is also a second account of $137.50 which I understand is the plumber’s call out fee for the original investigation. I understand from the applicant that she has not paid this account. Since the body corporate is responsible for the repair of the pipe, I consider that the body corporate is also responsible for the cost of the investigation of such matter.