Taroh Lodge [2001] QBCCMCmr 439 (9 August 2001)

RA MeekREFERENCE: 0296-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13241
Name of Scheme:	Taroh Lodge
Address of Scheme:	35 Lyon Street MOOROOKA QLD 4105

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

Marjorie Charlotte Finnemore, the owner of lot 5



RA MeekI hereby order that the owner of lot 4, Sylvia Josephine Leong, was responsible to repair the leak in the pipe supplying hot water to lot 4, and not the body corporate.

I further order that, within six weeks of the date of this order, the owner of lot 4 shall reimburse the body corporate the amount of $2215 to reimbursed the body corporate the amount it has expended on the repair of the leaking pipe.
n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0296-2001

“Taroh Lodge ” CTS 13241

The applicant Marjorie Charlotte Finnemore, the owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking an order that Mr Leong repay the $2215 he spent on Plumbing repairs.

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)).

This is a dispute about responsibility for maintenance, body corporate or an owner, and I intend to confine my determination to this aspect. The respondent, Mr Roy Leong, undertook some plumbing repairs, and paid for such repairs ($2215) out of body corporate funds. The applicant raised an objection to this on that basis that she believes that the repair was the responsibility of the owner of lot 4, and not the body corporate, and secondly, that the expenditure was not put to the body corporate in general meeting for decision.

The applicant relies on section 109 (in particular subsection (3)) of the standard module, which provides –

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.
(3) Despite anything in subsections (1) and (2)—
(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit; and
(b) the owner of the lot is responsible for maintaining utility infrastructure in good order and condition, to the extent that the utility infrastructure—
(i) relates only to supplying utility services to a particular lot; and
(ii) is 1 of the following types—

 hot-water systems

 washing machines
 clothes dryers
 another device providing a utility service of a domestic nature to a lot.
Examples for subsection (3)(b)—
1. An airconditioning plant is installed on the common property, but relates only to supplying utility services to a particular lot. The owner of the lot would be responsible for maintaining the airconditioning equipment.
2. A hot-water system is installed on the common property, but supplies water only to a particular lot. The owner of the lot would be responsible for maintaining the hot-water system and the associated pipes and wiring.
(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.

The applicant states that the respondent “did not disclose that the pipes were from his hot water system to his sink and bathroom”. The applicant believes that the respondent is responsible “for repairs to the pipes between a unit’s hot water system and the unit’s taps”. The applicant claims that the basis of this responsibility is section 109(3).

The respondent has denied responsibility for the cost of the repairs, and claims that they were the responsibility of the body corporate. The respondent submits several reasons for this. Firstly, that “the relocated pipe is a reticulating pipe. It is therefore not correct for (the applicant) to say that the relocated pipe relates to only supplying utility services to a particular lot”. The respondent claims that if an owner had failed to effect repairs to the leak, “the water flow into each and ever unit would be significantly effected”.

The respondent does not provide any evidence to this effect. In particular, there is nothing to support this statement in the “Tax Invoice” or “summary of work” provided by the contractor, GA Murphy Plumbing Pty Ltd. In fact those documents support the contrary conclusion in my view.

On 9 August 2001, I made an unannounced visual inspection of the scheme, in an endeavour to clarify certain aspects. In particular, whether the water supply was in the nature of reticulation. This inspection established very little except to show new copper piping which appeared to exit the garage of lot 4, run across common property and enter lot 4. There was evidence of another pipe installed which came out of the garage of lot 1, up the front common property wall of the building, and again into lot 4. My conclusion was that one pipe supplied hot water to the kitchen, and the other, the bathroom.

On returning from the inspection, I contacted the applicant by phone and asked whether the hot water system for each lot was located in the garage of the respective lot, as it appeared from the inspection. The applicant confirmed that this was the case. I then sought to confirm this with the solicitor for the respondent, who when I called, was “with a client”. I did not have the time to continue this inquiry.

I am satisfied that the hot water system for each lot is located in the garage of the respective lot. Further, it is usual that where individual hot water systems are installed, then that they service only one lot. Now days they are usually contained within the lot, but in a lot of older buildings, they were often located on common property, or say, as here, in a garage.

The plumber’s documents confirm that it was the hot water pipe to lot 4 which was replaced. The job is described as “replacement of hot water service”. It is clear that the original pipe from the hot water service of lot 4 located in the garage of that lot had been run through common property and thereafter through the slab floor of lot 4.

It is clear to me that there is no aspect of reticulation in this, but rather a pipe supplying hot 4 only to lot 4 from the hot water system located in the garage of that lot. The terms of section 109(3) are applicable to this situation. I am satisfied that the pipe that was repaired was a pipe associated with the hot water system servicing lot 4 only, for which the owner of that lot is responsible for maintaining.

The respondent next alleges that “the body corporate is properly responsible for the cost from a safety point of view”. The respondent alleges that the leak was causing damage to the building, and creating a safety hazard. This might be so, however it does not alter the fact that the responsibility for maintenance is that of the owner of lot 4. This is absolutely clear from the opening words of ss.(3).

Finally the respondent states that the retention of the leak would have caused damage to the structure of the property, which the body is responsible to maintain under section 109(2). This is merely an extension of the argument advanced regarding safety, and is rejected.

I have determined that the owner of lot 4 was responsible to repair the leak in the pipe supplying hot water to lot 4, and not the body corporate. I have ordered that the owner of lot 4 shall reimburse the body corporate the amount of $2215 to reimbursed the body corporate the amount it has expended on the repair of this aspect.