Sandown [2001] QBCCMCmr 43 (31 January 2001)

RA MeekREFERENCE: 0168-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10524
Name of Scheme:	Sandown
Address of Scheme:	4 Montana Road MERMAID BEACH QLD 4218

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

Peter John Chayter, the owner of lot 10



RA MeekI hereby order that the owner of lot 10, Peter John Chayter, is immediately authorised to engage his own contractors to undertake the repair to windows located on the south-east side of the building and affecting lot 10, without further reference to the body corporate.

I further order that within one (1) week of Mr Chayter providing to the chairperson / secretary the contractor’s invoice for repair of the windows, the body corporate shall reimburse Mr Chayter the cost of repairs as stated in the invoice.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0168-2000

“Sandown” CTS 10524

The applicant Peter John Chayter, the owner of lot 10, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the Sandown Body Corporate urgently take whatever action is necessary to stop water leaking through windows in the south-east side of the building and damaging my kitchen benchtops and cupboards.

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 he believes that the rubber glass seals have become brittle and have cracked and need replacing and that the window surrounds need sealing. In another letter, the applicant explains –

I have had water enter my kitchen via the window seals and the water has caused damage to my kitchen bench tops. I have repaired this damage as best I can and have taken steps to seal those parts of the window I can reach.

Submissions were sought by this office as long ago as last April. A response was received from a Lucille Ryan who signed the submission as chairperson. The submission states, so far as the water penetration is concerned -

The committee did make a decision at the last committee meeting to inspect Mr Chayter’s unit for water damage, while all committee members were in attendance on the AGM date of 27/4/2000. This was done and O’Brien Maintenance have also inspected the unit on the following day 28/4/2000. The outcome of their inspection has not been forthcoming as yet.

From the file it seems that another adjudicator from this office conducted a teleconference with the parties on an unspecified date. The notes of the teleconference indicate that it was agreed that the secretary would get tradespersons to inspect and report on the damage, and that the secretary would send the tradespersons reports to this office. There is a further note on the file which states –

Awaiting notification from Secretary re outcome of second and third trades inspection (30/7).

It seems from the file that the tradespersons reports were never provided to this office by the secretary.

On 16 November, 2000 another adjudicator spoke to the chairperson / secretary, Lucille Ryan. The file note records –

Asked Mrs Ryan what progress has been made in relation to fixing applicant’s windows. Mrs Ryan said BC approved work at EGM about 6 weeks ago and it is now in progress. Tradesman has been delayed by weather and staff shortages, however it should be completed next week. Mr Chayter is aware of all this. I asked Mrs Ryan to send minutes of EGM at which work was approved and also to advise us when work is completed. She will do so.

On 2 January this office requested the applicant to provide a “written update on the matter. Were the repairs carried out?” The applicant responded on 16 January 2001 stating –

Whilst a resolution was passed at the EGM held on the 15^th September 2000 and while a similar resolution was passed at the committee held on October 9^th 2000 to repair the windows to date nothing has been done. My understanding is that a contractor was authorised to do the work. I was advised of a date and travelled to the Coast but for various reasons mainly relating to staff the work was not commenced. Subsequently I was advised of a further two dates prior to Christmas but nothing was done. ...

In response to this, a member of this office rang Mrs Ryan on 24 January 2001. She responded that she had been trying to get work done but was unable to get the tradespeople to do the job.

I am simply not prepared to allow this farce to continue any longer. I apologise to the applicant for the seeming delay by this office. However I consider that this office has been mislead by the continual assurances (which were not subsequently acted upon) and other delays of the chairperson / secretary, and the apparent continuing failure of the chairperson / secretary, on behalf of the body corporate, to engage a contractor who can undertake the repairs.

In the circumstances, I am satisfied that the body corporate has accepted responsibility to undertake the necessary repairs to the applicant’s windows, to reseal the same to prevent further water penetration to the lot. I intend to order that the applicant is immediately authorised to engage his own contractors to undertake the repair, without further reference to the body corporate, excepting in respect of reimbursement of the applicant for payment of the contractor’s invoice. I further intend to order that within one (1) week of the applicant providing to the chairperson / secretary the contractor’s invoice, the body corporate shall reimburse the applicant the cost of repairs as stated in the invoice.

If the work has in fact been undertaken in the period between January 24, 2001 and the date of this order, then this order will be of no affect. However I do not consider that this eventuality would warrant any retraction of comments made in this order. This body corporate has delayed unnecessarily, and ultimately failed (to my knowledge at this date) to undertake repairs required of it. An owner should not be subjected to this level of inaction from a body corporate. It has now been at least four and a half months since the body corporate resolved in general meeting to undertake the work, and well over a year since this problem was first bought to the attention of the body corporate. I suggest that the body corporate act more expediently when matters within its area of responsibility are raised in the future. n