Talisman [2000] QBCCMCmr 548 (25 October 2000)

PJ HanlyREFERENCE: 0320-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10097
Name of Scheme:	Talisman
Address of Scheme:	67 Broadbeach Boulevard BROADBEACH QLD 4218

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

CLIPSE PROPERTIES PTY LTD, the owner of Lot 77



I hereby order that within two (2) months of the date of this order, the body corporate shall pay to CLIPSE PROPERTIES PTY LTD, the owner of Lot 77:

1. $975.00, being the costs incurred by the owner of Lot 77 to repaint water damaged areas to upper level walls and ceilings;

2. $480.00, being half of the cost incurred by the owner of Lot 77 to replace water damaged carpet.

I further order that the application by CLIPSE PROPERTIES PTY LTD, the owner of Lot 77 for an order that the body corporate pay the applicant’s costs of and incidental to the application, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0320-2000

“Talisman” CTS 10097

The applicant, Clipse Properties Pty Ltd of Lot 77 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

A.	The Respondent pay to the Applicant the total amount of $1,935.00 in reimbursement of repair costs incurred by the Applicant calculated as follows:
(i)	water damage caused to the upper level of the Applicant’s lot by leaking roof:

- $960.00 to repair and replace damage carpet.

- $975.00 to seal and repair damaged ceiling and repaint ceiling and walls.

B.	The Respondent pay the Applicant’s costs of an incidental to this Application.
C.	Such further or other order as the Commissioner or Adjudicator thinks fit.

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 solicitor for the applicant (“the applicant”) states that on 23 December 1998, the top level of Lot 77 suffered damage to the ceiling, walls and carpet due to water penetration through a defective roofing membrane. While not categorically stating the cause of the damage to the membrane, the applicant has referred to the use of the roof by maintenance contractors engaged by the body corporate. The applicant states that the body corporate is responsible for the maintenance of this membrane, and that the body corporate repaired the membrane in or about July or August 1999. On or after 15 December 1999, the applicant paid Jenta Design Consultants Pty Ltd for various work carried out in Lot 77. The applicant is claiming reimbursement from the body corporate for the following invoiced items:

1.	Replace water damaged carpet $960.00
2.	Repaint water damaged areas to upper level walls and ceilings $975.00.

A copy of the application was forwarded to the secretary for distribution to all members of the committee. Gordon Faulkner responded to the application on behalf of the body corporate. In his response to the application, Mr Faulkner states that T.A Taylor (Qld) Pty Ltd inspected the roof membrane, and he included a copy of the subsequent report dated 4 February 1999. Mr Faulkner submits that the problem “was a general and gradual breakdown over time of the membrane. The Body Corporate could not have known of the problem until water penetration has occurred”.

The applicant also refers to minor internal damage caused by a leaking window. The applicant states that the damage was rectified at a cost of $590.00, and that reimbursement is not sought in respect of the following invoiced items from Jenta Design Consultants Pty Ltd:

1.	Repair to leaking windows to upper level $400.00
2.	Repair and repaint column to upper level study due to water damage through leaking windows $190.00.

However, by letter to this office dated 27 July 2000, Richard Eckhaus, a director of Clipse Properties Pty Ltd, states that the cost of $590.00 should be reimbursed by the body corporate. The duly authorised solicitor of Clipse Properties Pty Ltd lodged the original application, yet in subsequent correspondence with this office, Mr Eckhaus implies that the application should be amended to include the further costs. While the application has not been amended to include this expense, I will give consideration to this matter.

Mr Eckhaus states that the leaking window was part of a modification, which occurred during or soon after the construction of the building and was completed by the original owner. The modification is identified on a plan provided to this office by Mr Eckhaus as being on the “Private Roof Terrace” on the southeastern side of Lot 77 and is referred to in the application as the study. The intended purpose of this plan was for Mr Eckhaus to identify those parts of Lot 77 referred to in the application which were damaged by water penetration. On this plan, Mr Eckhaus has noted that water entry into the top level of Lot 77 occurred in or around a passage, a landing, a stairwell, bedroom 1 and the study. Mr Eckhaus also notes that the carpet in the study was replaced.

The body corporate has a duty under section 108(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (“the Accommodation Module”) to maintain common property in good condition. Section 119 of the Accommodation Module makes provision in regards to the obligation of lot owners, including the obligation to maintain the lot in good condition.

The common property roof of the building is located on Level EE of Building Units Plan 5096. Lot 77 is situated directly below the roof on levels CC and DD. It is clear that the waterproofing membrane on the roof was defective.

Section 227(1) of the Act provides:

“Order to repair damage or pay compensation

227.(1) If the adjudicator is satisfied that the applicant for the order has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention—

(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or

(b) to pay compensation of an amount fixed by the adjudicator.

Example—

A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition, the adjudicator could, on application of the lot’s owner, order the body corporate to have the damage repaired or to pay appropriate compensation.”
I am satisfied that Lot 77 suffered damage to ceiling and walls as a consequence of water penetration through the defective roof membrane. In his submission, Mr Faulkner recognises the body corporate’s liability in respect of the costs incurred in repairing and painting these areas. Therefore, I have ordered that the body corporate reimburse the owner of Lot 77 the amount of $975.00 for repainting water damaged areas to upper level walls and ceilings.

However, I am not satisfied that the damage to the carpet in Lot 77 can be wholly attributed to water penetration through the defective roof membrane. Certainly, the applicant has not provided independent evidence to support this claim for compensation. The applicant does state that on 23 December 1998 “the upper level suffered water damage to the ceiling walls and carpet”. In his letter to the body corporate dated 18 January 1999, Mr Eckhaus states “our apartment was flooded in several areas by water entering through the ceiling and some of the window frames. As a consequence of this carpet has been damaged beyond repair and will need to be replaced.” The applicant initially separated the claims for damage from the water penetration from the roof and through a leaking window and did not seek any reimbursement in respect of the costs associated with the leaking window. However, the attitude of the owner of Lot 77 has subsequently changed and as I stated earlier, Mr Eckhaus believes that the cost of $590.00 should be reimbursed by the body corporate.

Therefore, I have given consideration to the responsibility for the maintenance of the study which is located on the Level DD part of Lot 77. The owner of Lot 77 is responsible to maintain this room under section 119 of the Accommodation Module, unless the body corporate is responsible to maintain under section 108. I am of the view that the body corporate has no obligation in respect of the water penetration through the window of this room. Therefore, the lot owner is responsible for the costs incurred in waterproofing this room and rectifying any damage caused as a consequence of any water penetration through the window. For these reasons, I consider that the owner of Lot 77 is responsible for the costs associated with repairing leaking windows to the upper level and repairing a column to the upper level study due to water damage through leaking windows.

The damaged carpet has been identified by Mr Eckhaus as being positioned in the study. While the applicant has not provided any evidence that the damage to the carpet was wholly due to the defective membrane, the report from T.A Taylor (Qld) Pty Ltd contains photographs which clearly identify wet carpet adjacent to the external wall of the study. This report was completed prior to the repairs in the study being carried out in February/March 1999 (as stated by Mr Eckhaus in his letter to this office dated 27 July 2000). Given these facts, the statement from Mr Eckhaus that the carpet was damaged in the same storm as other parts of Lot 77 were damaged, and that the applicant has not provided evidence to the contrary, I consider that it is reasonable to assume that water penetrating through the external wall of the study did damage the carpet. I am also satisfied that, based on the sketch plan prepared by Mr Eckhaus, there was water penetration into the study from the defective roof membrane. However, neither party to this dispute has provided any evidence as to the extent of the damage from either source. Therefore, I consider that it is reasonable that both parties be equally responsible for the cost of replacing the water damaged carpet. For these reasons, I have ordered that the body corporate reimburse the owner of Lot 77 the amount of $480.00, being half the cost of replacing the water damaged carpet in the study of Lot 77.

The applicant has also sought reimbursement of unspecified costs, which are incidental to the application. The applicant has not identified these costs, nor given any reasons to support a contention that the body corporate is responsible for incidental costs. There is no power under the Act for me to order the payment of costs, and I have dismissed this part of the order sought.