Reef Reflections [2000] QBCCMCmr 313 (29 June 2000)

P J HANLYREFERENCE: 0127-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	149
Name of Scheme:	Reef Reflections
Address of Scheme:	13 Hillside Crescent NORTH WARD QLD 4810

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

Heather Violet Tyler, the owner of lot 2



I hereby order that the body corporate shall within 30 days of the date of this order engage a suitably qualified person to provide a report as to the cause of water penetration into lot 2 and the reason for the pooling of water on the common property.

I further order that, upon receipt of the said report, and provided that the report indicates that the source of the water penetration into lot 2 falls within body corporate responsibility, the body corporate shall take immediate steps to effect such remedial works/repairs as are recommended by the report to prevent further water penetration into lot 2 and/or to prevent further pooling of water on the common property.

I further order that the body corporate shall thereafter attend to such repairs as are necessary within lot 2 to make good any damage which has been caused by the water penetration of that lot.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0127-2000

“Reef Reflections” CTS 149

The applicant Heather Violet Tyler, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Building inspectors/structural engineer’s report be obtained regarding water entering both bedrooms and lounge area of unit 2, 13 Hillside Crescent, also water pooling on common property areas. The dampness is causing mould to spread to curtains, carpets and clothing, making living conditions very unpleasant and not acceptable for a newborn baby which is expected April 26^th.

Section 223(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 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)).

In the supporting grounds, the applicant states that she would like an order to obtain a building inspector’s report or that of a structural engineer, with repairs being effected as soon as possible.

The body corporate manager and the body corporate committee were invited to respond to the application. No response was received from either party.

I have perused the material provided by the applicant, which includes copies of correspondence between herself and the body corporate manager, and copies of correspondence between the body corporate manager and the chairperson of the body corporate, who was also the original developer. I note that in the body corporate manager’s letter dated 9 March 2000 to the applicant, references are made to the fact that the chairperson has allegedly told the body corporate manager on several occasions that no further action was required to be taken by the body corporate manager in relation to the maintenance work required at the scheme. This material was provided to the committee with the invitation to respond to the application. In the absence of any response, I assume that the statements made by the body corporate manager in her letter dated 9 March 2000 to the applicant are not challenged by the chairperson.

Section 109 of the Standard Module provides that the body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition. A lot, or part of a lot adjoining other lots and/or common property and within a structure, shall be bounded by the centre of floors, walls and ceilings unless otherwise permitted by the Directions for the Preparation of Plans issued by the Registrar of Titles.
Accordingly, the outer half of the boundary walls of the applicant’s lot fall within the responsibility of the body corporate, on the basis that they are common property. If water penetration is occurring, and that water is coming from outside to inside (as one would expect), then the body corporate must take steps to identify the source of the water penetration, and then take further steps to prevent such water penetration. In addition, the body corporate is responsible for making good any damage which has been caused to a lot because of such water penetration (section 227 of the Act).

It is not immediately apparent from the material available to me why there has been water penetration into the applicant’s lot. The estimate dated 6 March 2000 from Jamieson Building Service relates to the painting of both interior and exterior walls. There is no explanation, however, as to why water has been penetrating the lot, or why water is pooling on the common property. I therefore consider that the body corporate should take steps to engage a suitably qualified person to provide a report addressing these matters, and then take further steps to carry out such repairs as are recommended by that person. I have ordered accordingly. I have further ordered that the body corporate must then repair any damage which has occurred within the applicant’s lot as a result of the water penetration.

2n