Windsor Apartments [2000] QBCCMCmr 329 (5 July 2000)

P G DanielsREFERENCE: 0153-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8661
Name of Scheme:	Windsor Apartments
Address of Scheme:	15 Salt Street WINDSOR QLD 4030

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

Body Corporate

1. P G DanielsI hereby order, subject to order 2, that a plumber nominated by the Body Corporate for Windsor Apartments or Suncorp Metway, can enter and remain on lot 7 for as long as is reasonably necessary to inspect the pipes and associated infrastructure.

2.	I further order that a member of the Committee must give seven days prior written notice of the date and time of the inspection and provide the name of the plumber to the owner of lot 7, Barry Stephen Kennerley.

3.	I further order that the owner of lot 7, Barry Stephen Kennerley, must do all that is reasonably necessary to grant access to his lot in accordance with orders 1 and 2.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0153-2000

“Windsor Apartments” CTS 8661

The applicant, the Body Corporate, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

Mr Kennerley answer his written and verbal correspondence with the Body Corporate in a positive manner by either:-

A/	Acknowledging there was an overflow for whatever reason from a bath, toilet, shower, vanity basin or washing machine etc. or that a large container eg a bucket of water was accidently tipped over causing a quantity of liquid to flow downwards causing damage to Unit 3 directly below. OR
B/	To allow access to Unit 7 by a plumber to determine the cause or source of the water which damaged unit 3 below.

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)).

On or about 17/18 February 2000, a substantial amount of water seeped into lot 3 causing damage. The owner of lot 3, Ms Pouran Ala’i, discovered the damage on Saturday morning 19 February 2000. Ms Ala’i reported the matter to the Secretary of the Body Corporate by letter dated 1 March 2000. The letter relevantly states:

“On 17/18 February, when the new owner of Unit 7 (the unit above my unit) moved in, a lot of water leaked from his unit to my unit! On Saturday morning (19^th of Feb.), I noticed that: (1) the carpet near bathroom was very wet, (2) there were water-stain all over the ceiling of the large bathroom, and on the corner of the small bathroom, (3) the doors of bathroom’s closet could not be closed properly because of moisture, (4) the woods of the closet were swollen and disconnected, (5) there was actual water inside the closet, and (6) when I took my hair dryer from that closet, and turned it on, electric sparks emerged from it which was dangerous, and now it is out of order.”

Subsequently, an insurance claim was filed with the building insurer, Suncorp Metway.

Suncorp has considered the claim but previously would not approve repairs to lot 3 until the source of the water damage was determined. This position seems to have subsequently changed. Ms Ala’i states in her submission that repairs to her lot commenced some time around 1 May 2000.

There have been numerous attempts to obtain the consent of Mr Kennerley for a plumber to inspect lot 7 or for Mr Kennerley to provide an explanation for the water penetration. All attempts have failed. Mr Kennerley has been informed that Suncorp does not intend to take recovery action against him.

Mr Kennerley has not made a submission in respect of the application.

I have decided that it is appropriate to make an order that Mr Kennerley grant access to his lot to a plumber so that the pipes and associated infrastructure can be inspected to determine if they are functioning properly or if they are in anyway defective. I have decided to make an order to that effect as I am uncertain about whether section 125 of the Act provides sufficient power. I do not propose to make an order that Mr Kennerley explain why the water penetration occurred. If the inspection shows no defects in the pipes and associated infrastructure then I think the logical inference is that the penetration occurred due to an isolated event, such as a tub overflowing.

I have ordered that seven days notice of the inspection must be given and the notice must provide the name of the plumber. The relevant member of the Committee will have to determine the date and time. I suggest, in the first instance, that further contact be attempted with Mr Kennerley to obtain a mutually convenient date and time for the inspection, although whether that occurs is a matter that the relevant Committee member can consider.

I inform Mr Kennerley that failure to comply with my order is an offence.