Gemini Court [2001] QBCCMCmr 38 (30 January 2001)

RA MeekREFERENCE: 0363-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9731
Name of Scheme:	Gemini Court
Address of Scheme:	45 Hayne Street BURLEIGH HEADS QLD 4220

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

Lance Vane Lansell and Audrey Graham Lansell, the owners of lot 129



RA MeekI hereby order that within three (3) months of the date of this order, the body corporate shall, at its expense –

a) Completely remove the existing tiles, adhesive, acrylic membrane and original tar urethane membrane, and improvements (if any remaining) from the whole of the roof terrace located on level V of lot 129;

b) Prepare the exposed concrete substrate and apply a high quality membrane system (ensuring compatibility with tar / urethane residue not able to be removed from the concrete substrata;

c) Install the new membrane with attention to correct detailing at all abutments, penetrations, outlets etc. so as to achieve a completely waterproof installation;

d) Install a new over-flashing detail at the perimeter turn up including integration with wall cavity flashing, and door sill flashing etc, above the level of any wearing surface which might subsequently be installed;

e) Locate and treat all cracks and moving joints in the walls and parapets with a suitable polyurethane sealant.

I further order that within a reasonable period after the repair of the membrane, the body corporate shall, at its expense, repair all internal damage to level U of lot 129.

I further order that Lance Vane Lansell and Audrey Graham Lansell, the owners of lot 129, shall allow reasonable access at all times to the body corporate, its employees, agents and contractors so as to allow the repairs to be undertaken and completed PROVIDED THAT the body corporate shall ensure that the repairs are undertaken in a professional manner, using proper materials and with as minimal interruption to the owners as reasonably possible.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0363-2000

“Gemini Court” CTS 9731

The applicants Lance Vane Lansell and Audrey Graham Lansell, the owners of lot 129, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	The body corporate as its own expense, repair the roof membrane parapet walls and associated works as set out in the reports of TA Taylor (Qld) Pty Ltd attached to this application.
2.	The body corporate at its own expense repair any corrosion, rust or other damage in the concrete roof slab forming the roof structure of 129.
3.	The body corporate at its own expense, repair water penetration damage to lot 129.
4.	The body corporate pay the applicant’s costs of and incidental to this application to be taxed.

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 undertook a physical inspection of the lot and met with the parties on Thursday, 22 January 2001.

I do not intend to restate the applicant’s supporting grounds in any detail. I consider that these grounds are known to the body corporate (the respondent). The body corporate has responded to the application by way of submission.

The applicants are the owners of lot 129. Lot 129 is located on levels U and V of the building. The lower level (U) contains 267m2, which includes most of the living areas and habitable space for the lot. The upper level (V) is smaller in area (170m2), and contains some service and covered areas, but is mostly open space roof terrace. The floor of the opened spaced area of the lot provides the roof for the lower level of lot 129, and indeed the building. This area is open to the weather for the most part. Those areas of lot 129 on level V that are not open space have there own roof, and there has been no suggestion that this roofing is not operating effectively.

For some years now, the applicants have experienced water penetration to the lower level of their lot from level V. The penetration is now evidenced by damage and discolouration to the ceiling of the lower level of lot 129.

During the period of the continuing water penetration, the exterior of the building has been painted by the body corporate. It is alleged by the applicants that for a period immediately after the painting of the building, the extent of water penetration to the lower level of their lot decreased considerably. However, the water penetration has now resumed and is apparently getting worse.

The applicants have owned the lot since 1996 or thereabouts. It is not in dispute between the parties that the former owners of the lot, the Mitterdorfers’, undertook certain refurbishment of the upper level of lot 129 (ie. level V). This refurbishment included the removal of the previous floor covering on that level which apparently was an artificial turf or matting substance similar to that occasionally seen on tennis courts. Apparently this covering was affixed or glued with some form of adhesive to the water proofing membrane located over the cement floor of level V. In addition, the refurbishment included the laying of a new flooring membrane of a type (acrylic) different from the original membrane (tar), and thereafter the laying of a new tile floor over the open areas of level V.

There is no direct evidence of how the former floor covering was removed, and how the new tiles were laid, and the pre-cautions, if any, that were taken to protect the underlying membrane. However it was suggested to me at the inspection that the artificial grass matting was pulled up and very little consideration, if any, was given to the preservation of, or the potential for damage to, the underlying membrane. There is further evidence to support these conclusions in the report provided to the body corporate by TA Taylor (QLD) Pty Ltd, Contractors and Consultants in Waterproofing and Building Maintenance, of May 1999 (the Taylor Report). In particular, the Taylor report finds (at pages 16 to 18) that the standard of the refurbishment work was defective in several respects, both from the selection of products used to the standard of workmanship undertaken as part of the refurbishment.

The Applicant’s view

The applicants rely on the terms of section 109 of the standard module as establishing body corporate responsibility for the prevention of water penetration to the lot. The applicant’s state that –

... the body corporate is obliged to both repair and maintain the parapets, the roofing membrane and cracks to the roof irrespective of whether or not the body corporate may make a claim against other parties for damage that has caused or contributed to any of the aforesaid defective works, cracks, etc.

The applicants seek to rely on the fact that they were not the owners of lot 129 at the time the refurbishment work was undertaken. Moreover, that the body corporate is obligated to undertake the repairs to the lot, and “after rectification work has been completed, should commence proceedings to recover the costs of such rectification work against the previous owners”.

The applicants challenge the findings of the Taylor report, and take issue with its conclusions. In particular, the applicants consider that is appears “uncertain whether or not the water penetration might also be caused by leaks in parapet and other the external walls of lot 129”.

The applicants request an order that the body corporate “be directed to forthwith undertake all necessary rectification works”.

The Body Corporate view

The body corporate argues that there is not a “dispute” within the meaning of section 182 of the Act, principally because the matter has not been referred by the applicants to the body corporate in general meeting for a determination. I intend to deal with this aspect immediately. I consider there is very clear evidence of a dispute, notwithstanding that the matter has not been referred to the body corporate in general meeting. The principle reason that the matter has not been so referred is the fact that the parties are in dispute about the level of responsibility, and depending on the determination of this aspect, it may be that the matter is within the financial limit of the committee. Moreover, I acknowledge the difficulty either party would have had in framing a suitable motion for inclusion on the agenda of a general meeting of the body corporate, given the nature of the issues in dispute. In the circumstances, I am satisfied there is a dispute within the meaning of the Act.

The body corporate states that the application is “inappropriate and orders should not be made ...”.

That the responsibility and jurisdiction of the body corporate “is limited to the external surface that is beyond the centre line, of the parapet walls and the dividing walls on level V”.

That there is no obligation on the body corporate to maintain the roof membrane between levels U and V of lot 129 because –

• The membrane only affords protection to level U of lot 129; and

• The work proposed in the order sought by the applicant is not “maintenance”.

The body corporate contends that it is not “just and equitable in the circumstances” to order the body corporate to “remedy defective workmanship in lot 129 which the applicants should have protected themselves about, in the context of acquiring lot 129”.

The body corporate contends that it has no power to act because of the expenditure limit (of the committee).

Finally, the body corporate states that it “can only rely on the Taylor Report as to where the leaking is occurring”.

The Taylor Report

The body corporate commissioned the Taylor Report. The conclusions of the Taylor Report are in my view reasonably certain in determining the cause of the water penetration. The findings of the Taylor Report are contained in pages 16 to 18 of the report. I do not intend to set out the findings of the report in these reasons since I consider that the parties have the benefit of the report.

Suffice to say that the Taylor Report concludes that the “major source of water entry into unit 129 and the adjacent balcony areas is through the roof terrace”. The report all but rules out water penetration from the “service roof area” (ie. the common property roof behind lots 128 and 129 on level V) and the roof terrace of lot 128.

Specifically the Taylor Report states at 4.4.1 –

The primary cause of water penetration into unit 129 and the adjacent balcony areas is due to failure of the unit 129 roof terrace deck waterproofing system.

The report then goes on to outline seven factors which it concludes have contributed to the failure of the “roof terrace waterproofing system”.

Applicant’s challenge to the Taylor report

As previously indicated, the applicants have alleged that the “water penetration might also be caused by leaks in parapet and other the external walls of lot 129”. The applicant’s allege this on the basis of the history and nature of water penetration to the lot, the fact of painting by the body corporate, and the owner’s own testing.

At the inspection, the applicants indicated to me the cracks in the parapet walls enclosing the roof terrace of lot 129 on level V which they believed might at least in part be responsible for the water penetration to level U of lot 129.

Beyond their own belief regarding this aspect, the applicant’s did not provide any report or expert opinion to support their conclusion. I note that the Taylor Report does not categorically rule out this possibility. It states, at paragraph 4.1.1 –

Water ingress through the walls and parapets surrounding the unit 129 roof terrace could impair the performance of any roof terrace membrane. Our observation of cracks and blisters in these surfaces indicates these are possible contributing factors in the water penetration into unit 129 and the adjacent balcony. No testing was carried out to confirm that actual water entry resulted from the observed defects.

And at 4.4.2, the Taylor report states –

Water ingress through the walls and parapets surrounding the unit 129 roof terrace may also result in water penetration into unit 129 and the adjacent balcony areas, however this has not been conclusively proven, and is unlikely to cause the extent of damage now evident to surface finishes in unit 129 or the adjacent balcony areas.

My view of the Taylor Report

At the inspection, given the applicant’s challenge to the findings of the Taylor report, I offered to adjourn the matter (or at least not proceed to a final determination) until such time as the applicants obtained their own expert opinion or report. The applicants declined this offer.

In the circumstances, I consider that I am entitled to rely on the conclusions of the Taylor Report to the effect that the primary cause of water penetration into unit 129 is the failure of the roof terrace deck waterproofing system, and not water ingress through cracks in the parapet walls (at least not primarily). I accept, as does the Taylor Report, that these cracks might be a contributing factor.

I consider there is also other evidence to support the conclusion of the Taylor report. In particular –

• The fact that the water penetration commenced following the refurbishment of the roof terrace area of lot 129;

• The fact that there is no evidence of water penetration from other parts of the roof located on level V; in particular, the common property roof top areas located adjacent to the roof terraces of lots 129 and 128, and from the roof terrace of lot 128, into lot 128 located on level U.

• The fact that there is no evidence to indicate a general problem of water penetration to lots from other parapet walls throughout the building.

Responsibility for repair of the water proofing membrane

Given my above finding, I now turn to consider the responsibility for repair of the water proofing membrane located on the roof terrace area of level V of lot 129.

Section 109 of the Standard Module provides as follows –

ú
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.
...
(4) To avoid doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) to maintain a part of a lot in good condition or in a structurally sound condition, the body corporate is not prevented from recovering an amount of damages from a person (whether
or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot.

To clarify the matter somewhat, I consider that it can be said with certainty that were it not for the refurbishment of the roof terrace of lot 129 (the refurbishment), then there would be little doubt in my mind that responsibility for replacement of the water proofing membrane (the membrane) would be the responsibility of the body corporate.

I say little doubt, because the body corporate has argued that it is not so responsible because the membrane only affords protection to level U of lot 129. The body corporate submits that “the relevant membrane is not of the type referred to in paragraph (2(a)(iii)). It does not provide protection “... for lots or common property”.” The body corporate submits that the express purpose of the provision is to allow the body corporate to intervene in a situation where a problem in a lot was affecting another lot in a scheme”. The body corporate states that in this case, the membrane in question affects only the lower level of lot 129. That it does not affect any other lot or any common property.

I do not agree with this restricted interpretation of the subsection. I consider that there is nothing in the wording of the section to support this interpretation. Moreover, I consider that to adopt this interpretation could lead to seemingly arbitrary determinations (ie. the body corporate is responsible except where ...), or worse, scenarios where two different parties are each partly responsible for maintenance of a membrane (ie. where a membrane provides protection for part of the same lot located on a lower level, but also another lot, and / or common property).

I consider that the wording of section 109(2)(a)(iii) should be given a meaning such that it applies if there is a membrane located within a lot which provided protection to any lot (including the lot in which the membrane is located) or common property. It should not be restricted to applying if the protection is provided to a lot other than a lot in which the membrane is located.

I conclude that on the basis of the provisions of section 109(2)(a)(iii), the body corporate is prima facie responsible to maintain in good condition the roofing membrane located on the roof terrace of level V of lot 129. The next aspect to be considered is whether this duty is affected by the fact of the refurbishment.

The refurbishment

The applicants consider that the body corporate is obligated to undertake the repairs to the lot, and “after rectification work has been completed, should commence proceedings to recover the costs of such rectification work against the previous owners”. Moreover, the applicants rely on the fact that they were not the owners of lot 129 at the time the refurbishment work was undertaken.

The body corporate contends that it is not “just and equitable in the circumstances” to order the body corporate to “remedy defective workmanship in lot 129 which the applicants should have protected themselves about, in the context of acquiring lot 129. A proper Building Inspection Report obtained at the time from an appropriately qualified expert should have warned about the defects in the way in which the wearing surface and membrane had been installed on level V of lot 129.”

I consider that it would have been difficult, if not impossible, for a prospective purchaser to have anticipated the defective workmanship involved in the refurbishment of the roof terrace of lot 129. The first evidence of water penetration to the lot occurred in or about May 1997, after the applicant’s had purchased the lot. Consequently, there would have been no information on the body corporate record which might have indicated a potential problem. Moreover, given that the consent of the body corporate to the refurbishment is in issue, then there would have been very little on the body corporate record to indicate that refurbishment of the roof terrace had even occurred, so as to even raise the possibility of defective workmanship. I am not saying that the applicants would have been total unaware that the roof terrace had been refurbished, but this knowledge probably arose more from the fact that they were already owners of another lot in the scheme (hence general knowledge that the roof terrace had been refurbished) or alternatively, were informed of the refurbishment directly in the context of the purchase of the lot.

I suggest that the potential for the problem which subsequently arose would have only been discovered after a very thorough and probably invasive inspection of the roof terrace of lot 129. Given that there would have been no indication of a problem from the body corporate record (and therefore nothing to suggest a potential risk), I doubt the vendors would have agreed to such an inspection being undertaken by the purchasers (now owners).

In the circumstances, I reject the body corporate’s contention that the applicants should have protected themselves about the defective workmanship in the refurbishment of the roof terrace, in the context of acquiring lot 129. I consider that this is an unreasonable expectation in the circumstances.

I consider the applicant’s contention that the body corporate is obligated to undertake the repairs to the lot, and “after rectification work has been completed, should commence proceedings to recover the costs of such rectification work against the previous owners”, is essentially correct, although I consider the applicants have expressed this obligation in very wide terms. This contention is consistent with the provisions of the section. The body corporate has a duty to maintain in good condition roofing membranes that are not common property but that provide protection for lots or common property.

I consider that the strict duty of the body corporate to undertake the necessary maintenance, and thereafter seek restitution for a person whose actions caused or contributed to the damage, is put beyond any reasonable doubt by virtue of the provisions of section 109(4). That section has been framed in such a way so as to prevent a body corporate from refusing to undertake maintenance for which it is deemed to be responsible under (2), by reason of the fact that it alleges that the actions of another have caused or contributed to the damage. The section requires that the body corporate undertake the maintenance and thereafter is entitled to recover “an amount of damages from a person (whether or not the owner of the lot) whose actions cause(d) or contribute(d) to damage or deterioration of the part of the lot.”

This leads me to the next equally disputed aspect; namely the extent of the body corprorate’s duty to maintain in good condition the roofing membrane.

The body corporate’s duty to maintain the roofing membrane in good condition

The applicants seek to express the duty of the body corporate in very wide terms. The applicants seek an order that the body corporate be directed to “undertake all necessary rectification works”. Since it is not expressed more specifically, I can only assume that the applicant’s seek that the body corporate be ordered to undertake all aspects of the rectification including, but without limiting other actions which might be required in the course of rectification, the following -

• The removal of all existing tiling, and both the new and old (original) membrane;

• The preparation of the roof terrace surface including remedial works to any steel reinforcing located in the cement floor slab which might have become corroded due to water penetration;

• The affixing of a new water proofing membrane to the roof terrace of lot 129;

• The laying of a new flooring surface to the roof terrace of lot 129;

• The repair of all damage to the interior of lot 129 on level U caused by the water penetration.

In contrast, at paragraph 18.11 and 18.12 of its submission, the body corporate submits that –

... on any reasonable meaning of the word “maintain” it cannot be held to include a process of:

a) Removing bad workmanship previously done by others;

b) Removing the wearing surface so as to provide access to the membrane;’

c) Replace the membrane entirely;

d) Removing other structures installed by a proprietor of lot 129;

e) Fixing in place a new wearing surface presumably to be selected by the applicants.

It is submitted that the work to be done in terms of the order sought by the applicants extends far beyond a concept of “maintenance”.

At paragraph 19.6, the submission states –

The (body corporate) has offered to fix the membrane itself leaving the applicants to attend to the other necessary work particular the re-installation of the wearing surface.

Replacement of the membrane

There is no doubt that “maintain” does include replacement, where maintenance or repair of the original is either not practical or possible. The Taylor Report, at paragraph 5.1.1, clearly contemplates replacement of the original membrane. There is no doubt that in this instance, the body corporate is required to replace the (original) membrane, with a new one.

The selection of an effective membrane and appropriate method of application is a matter for the body corporate entirely. This is not a matter in respect of which the approval or consent of the owner of the lot is required. Perhaps the owners might be consulted out of courtesy, but in my view, the final determination is a matter for the body corporate alone. The body corporate should be aware though that should either the type or method of affixation of the membrane be inappropriate, and fails to prevent further water penetration to the lot, then it will be required, pursuant to its duty under section 109(2)(a)(iii), to again maintain the membrane. Therefore it is in the interests of the body corporate to get it right.

Preparation work necessary to replace the membrane

The duty of the body corporate is to maintain in good condition the roofing membrane. The body corporate has argued that it should not be responsible for removing bad workmanship previously done by others; removing the wearing surface so as to provide access to the membrane; or ... removing other structures installed by a proprietor of lot 129.

I have found this aspect difficult and have given the matter considerable thought. The body corporate has indicated to me certain definitions of “maintain” and also cited the decision of the Supreme Court of Queensland Court of Appeal in Julian-Armitage v. The Proprietors Astor Centre. With respect, I find extract of the decision referred to me to be of no assistance with the present aspect.

The fact is that the body corporate is obliged to replace the membrane. However, the body corporate considers that it should not be required to undertake all necessary preparation work; principally removal of all wearing surfaces and other structures installed by a proprietor. It is not strictly correct for the body corporate to suggest that the wearing surface (for want of a better term) was a fixture installed by an owner. The original membrane had affixed to it a wearing surface installed by the developer. Had the membrane required maintenance, then the body corporate would certainly have been required to remove the original wearing surface. I consider that this approach is equally applicable even where an owner has installed a new wearing surface. The area was always designated a roof terrace, and it was always envisaged that the area would be fully utilised by the owners of the lot as living space. Given this, then it is not surprising to find a wearing surface has been installed over the membrane, for protection of the membrane as much as aesthetics.

I draw the analogy with painting. Had the body corporate been required to paint part of a lot, then by implication, it would have been a reasonable expectation, in my view, that the body corporate would also have been required to prepare the area to be painted. I consider the removal of the tile floor, and to the greatest extent possible the acrylic, and finally the original tar membrane, together with the removal of other structures (ie. the BBQ and shade structure) and any other preparatory work required to be done, to be, by implication, part of the obligation of the body corporate under section 109(2)(a)(iii).

I have one qualification to add to this. I consider that the body corporate in removing any such improvements (in particular, the BBQ and shade structure) is under no obligation to preserve them such that they can be replaced by the owner at a later date. I consider that the making of improvements by an owner in circumstances such as exist here are subject always to the possibility that the improvements might need to be dismantled, or even destroyed, by the body corporate in the performance of its obligations under section 109(2). Therefore it may be in the interests of an owner to dismantle and remove any improvements which the owner might want to re-install at a later date. I will not impose on the body corporate an obligation to remove, and store, improvements in such a way that they might be subsequently re-installed by an owner at a later date. Such an obligation would be too onerous.

In the context of being required to undertake all necessary preparation work, the body corporate should remember its right preserved in section 109(4). Namely, that in the event of being obliged under section 109(2) to perform work to maintain part of a lot in good condition, the body corporate has a right to recover “an amount of damages from a person (whether or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot”. In my view, the cost of removal and all other necessary preparation work would be capable of inclusion in any claim for damages against a person whose actions the body corporate considered caused or contributed to the damage or deterioration of part of the lot.

In my view, it is for the body corporate to determine whether to pursue legal action against the previous owners of lot 129 if it considers that the actions of those owners have caused or contributed to the damage which has apparently been done to the water proofing membrane which the body corporate is responsible to maintain in good condition. Whilst the issue of body corporate consent to the improvements made by those owners has been raised before me, I consider that this issue is properly one for any legal action the body corporate might consider appropriate against such owners. I intend to say no more regarding this aspect.

Rusting or other damage to the steel in the concrete roof slab forming the roof structure of lot 129

The applicants have sought an order that the body corporate repair any corrosion, rust or other damage in the concrete roof slab forming the roof structure of lot 129. The applicants state that Burchill Partners Pty Ltd, Civil and Structural engineers, provided to them a report dated 7 March 2000 “to the effect that moisture would cause the reinforcing steel within the roof structure to corrode and that it was likely that corrosion had already commenced. The Burchill report states as follows –

We are concerned that the moisture will cause the reinforcing steel within the roof structure to corrode thus reducing the structural capacity of the reinforced concrete slab. It is likely that some corrosion has commenced already and that given time will eventually develop into a serious problem. We recommend that immediate action be taken to repair the source of the leaks. Prompt action will ensure no further deterioration of the structure and contain the remedial costs to a minimum. Further delays in addressing this problem will result in further additional problems.

The report is short on technical detail. I suggest that any person, acting reasonably, might have concluded that steel reinforming coming into contact with water would have the potential to rust or corrode. The report does not give any indication of the level of damage, if any, to the reinforcing steel. Moreover, the report does not suggest that the structural integrity of the concrete slab has been affected, or even is likely to be affected. Finally, the report gives no indication of the type of remedial action considered to be necessary to prevent any further deterioration of the structure.

I am not prepared to order in terms sought by the applicants on the basis of this report. Whilst I acknowledge that the body corporate has an obligation to maintain this roofing / covering structure (ie the slab) in a structurally sound condition (which is to be contrasted with “good condition”), I have not been provided with any evidence which confirms to me that the slab is not currently in a structurally sound condition.

This is not to say that it is not open to the body corporate, in the course of attending to the maintenance of the membrane, to consider and even undertake any repairs or other remedial action in respect of the slab which the body corporate considered were prudent and necessary to maintain the future structural soundness of the slab, in accordance with its obligation under section 109(3)(b)(ii). Moreover, I consider that the provisions of section 109(4) may be relevant in respect of repairs or remedial action to the slab, if any.

The parapet walls

Whilst I acknowledge that the Taylor Report was equivocal on whether cracking in the parapet walls of the roof terrace located on level V of lot 129 was in part the cause of water penetration to level U of the lot, it did acknowledge that -

Water ingress through the walls and parapets surrounding the unit 129 roof terrace may also result in water penetration into unit 129 and the adjacent balcony areas ...

I further note that the Taylor Report, notwithstanding its finding regarding the walls and parapets, did nevertheless recommend, at paragraph 5.2.1 that all cracks and moving joints in the walls and parapets should be located and treated with a polyurethane sealant.

The provisions of section 109(2)(a)(i) of the standard module make it the responsibility of the body corporate to maintain in good condition railings, parapets and balustrades on the boundary of a lot and common property.

In the circumstances of this application, I consider it prudent to order the body corporate to undertake this additional action as recommended in the Taylor Report. Presumably, it is a relatively small matter which can be undertaken by the contractors engaged by the body corporate to repair the membrane, and at the same time, and in a co-ordinated manner. I consider that it is in the long term interests of the body corporate to undertake this repair at this stage.

The laying of a new wearing or flooring surface following maintenance to the membrane

I do not consider the responsibility of the body corporate for maintenance of the membrane extends to the laying of any new floor covering or surface over the new membrane which has been laid. The body corporate is obliged by section 109(2)(a)(iii) to maintain in good condition the roofing membrane; not to reinstate the lot to its former condition.

If an owner has chosen to install, or to replace, a floor covering or surface over a membrane which the body corporate is responsible to maintain, and the membrane does thereafter require maintenance, then the replacement of any future floor covering or surface is a matter for the owner. It is part of the risk that the owner takes in choosing to install, or to replace, the floor covering or surface.

Moreover, in taking any action to install a new floor covering or surface, or in fact in choosing not to replace a previous floor covering or surface over a membrane, the owner of a lot might be liable to a claim for damages arising under the operation of section 109(4) of the standard module, in the event that the actions of that person cause or contribute to any damage or deterioration of the membrane. What I am saying is that in the same way as the provisions of section 109(4) might be relevant to the damage done to the membrane in the refurbishment undertaken by the previous owners of the lot, the installation of any future floor covering or surface, or for that matter, the affixing of any improvements, by the lot owner might be similarly affected. Consequently, I suggest that the installation of any future floor covering or surface by the owners should be done in consultation with the body corporate, and in accordance with advice received from the manufacturer or installer of the membrane as to how the membrane should be treated or dealt with.

Internal damage to the applicant’s lot

I consider that the body corporate is responsible to repair the damage caused to the interior of the applicant’s lot. Section 227 of the Act provides –

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.

The example referred to in the section is almost precisely on point with the facts of this application. Although the membrane is not common property, on the basis of section 109(2)(a)(iii) the body corporate had a duty to maintain the membrane in good condition. The failure of the membrane has caused damage to the interior of lot 129 on level U, which the body corporate is responsible to repair. I intend to order that the body corporate effect necessary repairs to reinstate the interior of the applicants lot following the completion of the repairs to the roof terrace.

I further understand that the body corporate insurer might be receptive to a claim in respect of this aspect. However this is a matter between the body corporate and its insurer.

Costs of the application to be taxed

The final order sought by the applicants is an order that the body corporate pay the applicant’s costs of and incidental to this application to be taxed. The body corporate submits that the Act contains no provision for the making of any order as to costs as between parties excepting section 226.

Adjudicators have consistently held that the Act provides no authority for an award of costs between parties. I do not intend to exhaustively consider this aspect further except to say that no order for costs will be made. If the parties seek further reasons for this, I will arrange to provide a copy of the order where an adjudicator of this office did consider the issue exhaustively and concluded that no power to award costs existed.

Necessary consultation and co-operation between the parties

The implementation of the terms of this order will require the on-going co-operation and good will of the parties. It is in the interests of both parties to seek to achieve and maintain this. Whilst the body corporate is responsible to undertake the necessary preparation work, the laying of the new membrane, and finally the internal repairs to the applicant’s lot, it is not technically required to consult with the applicants regarding choices available to it. However, I recommend to the body corporate that it does so consult with the applicants to achieve an optimal outcome.

Also, it will be necessary for the applicants to make access to their lot available to the body corporate, its employees, agents and contractors so that the necessary repairs can be undertaken. This will no doubt cause disruption to the applicants but I believe that it is in their long term interests to allow reasonable access at all times so that the work might be undertaken.

y