La Porte D'Or [2000] QBCCMCmr 89 (21 February 2000)

RA MeekREFERENCE: 0605-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Ambrose James Zinn, the co-owner of lot 168

RA MeekI hereby order that, within one (1) month of the date of this order, the body corporate shall take all reasonable and necessary steps to lodge with its building insurer a claim in respect of the damage caused to lot 168, by renovations to the lot immediately above, and further, the body corporate shall do all things reasonable and necessary to resolve such claim urgently.

I further order that if the body corporate does fail for whatever reason to initiate a claim with its insurer as set out in this order, or otherwise fails to reasonably proceed with or resolve such claim, then that the owner of lot 168, Ambrose James Zinn, is hereby authorised to proceed with the repairs to his bathroom, with the reasonable cost of such repairs to be indemnified by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0605-1999

“La Porte D'or” CTS 12681

The applicant Ambrose James Zinn, the co-owner of lot 168, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Golden Gate Body Corporate should proceed immediately with an insurance claim for damage to my bathroom, when renovations carried out in the apartment above dislodged large pieces of concrete which subsequently fell into my bathroom damaging the bath.

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 states that –

In early January 1999, renovations began in the apartment directly above my apartment ... . On entering our second bathroom one morning, I discovered large quantities of concrete dust covering the bath, vanity unit and floor. When I removed a ceiling panel to ascertain the source of the problem, large pieces of concrete fell into the bath and vanity unit causing damage to both. These large pieces of concrete were pushed through the above apartment waste hole in the floor and into our ceiling cavity by the renovator above. I immediately notified the body corporate maintenance manager who assured me action would be taken to repair my bathroom.

Nine months have elapsed and despite a meeting with the body corporate secretary and acting manager Marika Maseli, my bathroom still remains in a damaged state. I have supplied two quotes for repair and filled out a claim form as requested by the insurer and after lengths negotiations with both the body corporate secretary and acting manager, still no results.

The applicant has attached a series of photographs as part of his application. The photographs show the concrete which has been dislodged from the ceiling above. The pieces are of reasonable size, with two large flat pieces and one piece roughly the size and shape of a toilet roll. There are also photographs showing the concrete ceiling above the applicant’s bathroom and the pipe connected to the above bath or shower recess. It seems that one of the pieces of concrete at least has been dislodged from around the pipe servicing the bath or shower recess. Finally there is evidence of dust and rubble in the applicant’s bathroom.

The applicant has attached two quotes outlining required repairs to his bathroom. The first is for $1740 and the second $1835. These quotes are dated August and September 1999 respectively.

The body corporate has not responded to this application by way of submission, notwithstanding that a Notice inviting submissions was sent to both the secretary, Dianne Francis and the body corporate manager, Ms Marika Maselli of AM Strata Administration. This office has experienced considerable difficulty in dealing with this body corporate management company of late, with virtually no response or action in respect of any material which has been sent for distribution or response. This has affected the ability to resolve several disputes, and has led to the Commissioner writing to AM Strata Administration regarding the problem.

Notwithstanding that the body corporate has not responded however, I am satisfied of two things –

•	Firstly that it has been specifically invited to do so; and
•	Secondly, that the body corporate is aware of the problem disclosed in the application and appears to have declined to address the issue.

The applicant has sought that I order the body corporate to institute a claim against the body corporate’s insurer for the damage done to his lot. I have some reservations that this course of action will result in the repairs being effected expeditiously, however I am willing to proceed on the basis that this is the course of action requested by the applicant.

Further, I am satisfied that the applicant is entitled to relief in respect of the damage done to his bathroom. Had the body corporate responded by way of submission, and alleged that it was not its responsibility, I might have considered this aspect further, and made a determination of responsibility between the body corporate and the owner of the lot above the applicants. However the body corporate did not so respond, and further, the nature of the relief sought by the applicant is such that no determination of responsibility is required. Suffice to say, the applicant should not be responsible for the cost of repairs to his bathroom.

I am satisfied that the body corporate should proceed to make a claim against its insurer in respect of the damage to the bathroom of lot 168. I intend to order that the body corporate do so within one (1) month of the date of this order. I further intend to order that if the body corporate fails to comply with this order in the time frame permitted, then that the applicant is at liberty to proceed with the repairs to his bathroom, with the reasonable cost of such repairs to be indemnified by the body corporate. I am prepared to make a further order facilitating this, if such further order should be necessary.