Adrian Lodge [2001] QBCCMCmr 320 (14 June 2001)

RA MeekREFERENCE: 0145-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9115
Name of Scheme:	Adrian Lodge
Address of Scheme:	90 Pembroke Road COORPAROO QLD 4151

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

Gabrielle Maree McFarlane, the (then) owner of lot 3

RA MeekI hereby order that the application by Gabrielle Maree McFarlane, the owner of lot 3, for an order that the owner of lot 5, Jason Ellemor, is required to arrange for or make repairs to shower floor surface of unit 5 to prevent water leaking into unit 3 shower ceiling, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0145-2001

“Adrian Lodge” CTS 9115

The applicant Gabrielle Maree McFarlane, the (then) owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The owner of lot 5, Jason Ellemor is required to arrange for or make repairs to shower floor surface of unit 5 to prevent water leaking into unit 3 shower ceiling.

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)).

I do not intend to restate the applicant’s grounds, since there is no point in this. I understand that the applicant has now sold her lot.

The last correspondence received by this office in respect of the dispute was correspondence dated early April indicating a slight delay in having the plumber and the engineer attend the lot to undertake and inspection of the bathroom. It appeared clear from this and other correspondence that the owner of lot 5, Jason Ellemor, had accepted responsibility for the water penetration to the lot below, and belatedly appeared to be seeking to attend to rectification of this.

To ascertain the updated position, I contacted Mr Ellemor by phone on 13 June 2001 and was surprised to learn that the problem had still not been rectified in the two month period since the last correspondence. Mr Ellemor did however indicate that he had instructed plumbers to attend to the work. I sought confirmation of this by way of a copy of the correspondence whereby Mr Ellemor had authorised the plumber to proceed with the work. Such correspondence was forthcoming, and confirmed that Mr Ellemor had in fact authorised Gibson Bros. Plumbing to proceed with the work as detailed in (their) quotation for the renovation of the shower recess at unit 5, 90 Pembroke Road, Coorparoo. The date of this correspondence was 28 May 2001.

In the circumstances, I intend to dismiss this application, not for the reason that I do not consider Mr Ellemor responsible to undertake repairs to the shower recess of his lot to prevent further water penetration to the bathroom of lot 3 below, but rather, because such repairs have in fact been authorised by Mr Ellemor. Were it otherwise, then in all probability I would have ordered Mr Ellemor to undertake the work. n