Riviera Apartments [2000] QBCCMCmr 469 (15 September 2000)

RA MeekREFERENCE: 0254-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17576
Name of Scheme:	Riviera Apartments
Address of Scheme:	96 Oxlade Drive NEW FARM QLD 4005

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

RA MeekI hereby order that body corporate of Riviera Apartments is responsible for the remedial works required to be undertaken to the common property garden beds located on level B of the scheme adjacent to lots 1, 2 and 3, necessary to correct the water proofing membrane and to replace the current drainage system. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0254-2000

“Riviera Apartments” CTS 17576

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

Commissioner’s ruling to determine who is required to pay repairs to building.

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)).

In the supporting grounds, the applicant seeks a determination of who is responsible (owner or body corporate) for work required to be done to the common property exclusive use areas of the scheme. The exclusive use areas adjoin and have been allocated for the benefit of the owners of lots 1, 2 and 3, which are the three lots located on level B over the car parking level. The body corporate states –

The areas were established as gardens, when the building was completed in early 1995, but have proved to be badly constructed and now require substantial remedial work to rectify faults. Those faults are affecting the exterior structure of the building, and are considered to be a direct consequence of the builder’s deviation from the BCC approved design plans.

The waterproofing membrane installed in the gardens has failed, allowing water seepage through the exterior walls and floors. Advice received from a water proofing specialist indicates that the waterproofing installed inside the gardens was inadequate for the task, and will have to be replaced.

Furthermore, the builder ignored the approved drainage design, and instead, inserted small drainage spouts through the exterior walls to discharge garden and balcony run-off. ... Rectification will involve the installation of a complete drainage system within the gardens in accordance with the original design. ...

The exclusive use by-laws in question provide relevantly as follows –

The proprietor for the time being of lot _ shall be entitled to the exclusive use ... of the area ... hatched ... for the purpose of a courtyard. The proprietor to whom exclusive use of the space is given pursuant to this by-law shall not litter the same to create a nuisance or obstruction and shall be responsible for the performance of the duty of the body corporate under section 38 in respect of such part of the common property to which this by-law applies.

The reference to section 38 is to the (now repealed) Building Units and Group Titles Act 1980. I do not understand the reference to this section as it is headed “Administrative fund and sinking fund”. This section is not specifically related to the maintenance of common property. Rather, I consider that the intent would have been to refer to section 37 or parts thereof (which is headed “Duties and powers of body corporate regarding property” and which section was usually referred to in connection with exclusive use by-laws). However, I have no power to assume this and must proceed on the basis of the reference to section 38, as the relevant by-laws state.

Specifically, in respect of exclusive use by-laws, section 123 of the standard module provides as follows -

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Conditions and obligations under exclusive use by-law—Act, s 136
123.(1) If the owner of a lot included in the scheme to whom rights are
in the first instance given under an exclusive use by-law agrees in writing,
the by-law may impose conditions (which may include conditions requiring
the owner to make a payment or periodic payments to the scheme’s body
corporate or the owners of lots included in the scheme, or both).
(2) An exclusive use by-law is taken, in the absence of other specific
provision in the by-law for maintenance and operating costs, to make the
owner of the lot to whom exclusive use or other rights are given responsible
for the maintenance of and operating costs for the part of the common
property to which the exclusive use by-law applies.
Examples of operating cost for part of common property—
Cost of providing lighting to the part of common property.

Subsection (2) provides that unless the by-law specifically states who is responsible for maintenance and operating costs, then it is presumed that the owner of the lot which receives the benefit of the exclusive use, is so responsible.

The provisions of section 109 of the standard module are also relevant. That section provides in part that –

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Duties of body corporate about common property—Act, s 114
109.(1) 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.
(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.

The exclusive use garden areas are common property. Ordinarily, the body corporate is responsible for the maintenance of common property (under section 109). This presumption however is displaced in the situation where exclusive use has been granted. In this instance, in the absence of specific provision, maintenance and operating costs are deemed to be the responsibility of the owner of the lot benefited by the exclusive use. The question to be determined in my view is whether the nature of work required to be undertaken is “maintenance” within section 123, or is it more structural in nature.

What is required to be undertaken is to replace the waterproofing membrane located in the garden beds, and further, to provide an appropriate method of drainage (similar to what was originally approved by the Brisbane City Council) in place of the drainage spouts which are currently installed. I note that –

• The faults are affecting the exterior structure of the building;

• The water proofing membrane has failed;

• The drainage system installed by the builder is inadequate.

I consider that the nature of the work required to be undertaken is more structural than maintenance. Maintenance would be to repair or replace an existing fixture. However, in this case, more than repair or replacement is required. Rather, both the extent of water proofing, and the system of drainage need to be upgraded. If these matters are not attended to, then ultimately the ongoing damage has the potential to affect the structure, as well as to cause nuisance and inconvenience in the meantime.

Section 109 provides that the body corporate is required to keep the common property in a structurally sound condition. This obligation is not affected by the provisions of section 123(2). I therefore consider that the body corporate is required to carry out the necessary repairs to the common property gardens beds, notwithstanding that exclusive use of these areas has been granted to certain lots. I have ordered accordingly.

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