21st Avenue Apartments [2000] QBCCMCmr 589 (17 November 2000)

P J HANLYREFERENCE: 0419-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4661
Name of Scheme:	21st Avenue Apartments
Address of Scheme:	1374 Gold Coast Highway PALM BEACH QLD 4221

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

Scott Beckett and Danielle Kincade, the occupiers of lot 7, and by Neville John Taylor and Gaye Pamela Taylor, the owners of lot 7



I hereby order that, within 1 month of the date of this order, the body corporate shall pay the sum of $649.50 by way of compensation to Scott Beckett and Danielle Kincade.

I further order that, within 1 month of the date of this order, the body corporate shall pay the sum of $390.00 by way of compensation to Neville John Taylor and Gaye Pamela Taylor.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0419-2000

“21st Avenue Apartments” CTS 4661

The applicants, Scott Beckett and Danielle Kincade, the occupiers of lot 7, and Neville John Taylor and Gaye Pamela Taylor, the owners of lot 7, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order to have the body corporate pay the following costs resulting from the flooding of the unit by raw sewage:

Clean up costs detailed on invoices 748 & 03 $560.00

Insurance excess for replacement of carpet $100.00

After hours call out by Coastal Maintenance $ 30.00

Damage to tenants personal belongings & furniture $663.50

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 applicants state that on 30 April 2000 the lot was flooded with raw sewage causing damage to the property of both the occupiers and the owners. The applicants provide details of the steps taken in relation to the matter, and also provide an affidavit sworn on 21 July 2000 by Julie Anne Bray, a letter dated 8 May 2000 from Ms Bray to the body corporate manager and an undated statement by the occupiers, together with copies of other relevant correspondence.

The body corporate committee was invited to respond to the application. No response was received.

The burst pipe was on common property. The body corporate has a responsibility to maintain common property including utility infrastructure, into which category the pipe falls, in good condition (sections 21 and 114 of the Act and section 109 of the Standard Module). If the body corporate committee had been able to satisfy me that it had carried out a regular programme of maintenance, or at least carried out regular checks of the sewerage pipes, I may have formed the view that the body corporate had fulfilled its responsibility under the Act and the Standard Module. In such circumstances, the claim before me would have failed. However, as I have not been assisted by a response from the body corporate committee, I assume that the committee does not deny liability. I note that the pipe was repaired at the expense of the body corporate on 2 May 2000. I also note that the body corporate insurer paid the owners of the lot for the cost of replacing the carpet and curtains in the lot. It has been alleged that the pipe broke as a result of tree or plant root invasion. In the absence of information from the committee, I have accepted that this was the cause of the damage to the pipe.

It appears that the body corporate’s view, as conveyed by the body corporate manager in his letter dated 20 June 2000 to the owners of the lot, is that the loss incurred by the occupiers of the lot will not be compensated by the body corporate because “the tenant is obliged to carry personal insurance.” The Act does not oblige a tenant to carry insurance, and many people do not carry insurance, preferring instead to take the risk themselves. However, in this instance, the event which occurred was not only beyond the control of the occupiers, I am satisfied that it occurred as a result of a failure on the part of the body corporate to meet its obligation to maintain common property.

Section 227 of the Act provides as follows:
ú

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.

(2) The order cannot be made if—

(a) for an order under subsection (1)(a)—the cost of carrying out the

repairs is more than $75 000; or

(b) for an order made under subsection (1)(b)—the amount of the

compensation is more than $10 000.

I am satisfied that the body corporate has contravened the Act by failing to properly maintain the utility infrastructure of the scheme, thereby resulting in the situation where the subject lot was flooded when the pipe burst and raw sewage was able to enter the lot. I am further satisfied that the occupiers and the owners of the lot sustained damage.

In relation to the claim by the occupiers, I note the independent evidence of Ms Bray that she observed certain items of personal property to have been damaged when she visited the premises on 9 May 2000. I further note the photographs provided by Ms Bray, which I have found of assistance in reaching my determination. Although the occupiers have not provided receipts for all of the items for which they have claimed, I consider their claim to be reasonable. I do note, however, that they have claimed the sum of $90.00 for a new skateboard, when the invoice from Skateboards Only states that the cost to replace the skateboard is $76.00. I have therefore reduced the claim by $14.00 and ordered that the body corporate pay compensation in the sum of $649.50 to the occupiers.

In relation to the claim by the owners, I am not prepared to allow the claim for carpet cleaning and carpet drying, as the carpet was ruined, and was ultimately replaced at the expense of the body corporate insurer. I am however prepared to allow the claim for water extraction, as it would no doubt have been difficult to remove the carpet until the raw sewage was extracted. I am also prepared to allow the claim for treating the concrete floor and the brick wall for staining. I have also allowed the claims for the excess on the insurance, the cleaning of the unit, and the call-out fee from Coastal Maintenance. I have ordered that the body corporate pay compensation in the sum of $390.00 to the owners.2y