Tobermory [2001] QBCCMCmr 519 (27 September 2001)

CG YOUNGREFERENCE: 0313-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15022
Name of Scheme:	Tobermory
Address of Scheme:	216 The Esplanade BURLEIGH HEADS QLD 4220

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

Body Corporate for Tobermory,


CG YOUNGI hereby order that, within two (2) months of the date of this order the body corporate shall engage a suitably qualified person to inspect and report on the most effective way to –

1. prevent water entering the garages of Lots 1, 2 and 4 from the deck of Lot 4.

2. drain storm water from the deck of Lot 4 to prevent further damage to the garage doors and their fixtures and fittings and the common property walls.

3. prevent water seeping from the garden beds constructed on the deck of Lot 4 to prevent further damage to the common property walls.

I further order that within a further two (2) months, the body corporate must at its cost engage appropriately qualified tradespersons to carry out the work recommended in the reports on matters 1 and 2 above, with the work to be commenced and continued so as to be completed within a reasonable time but no later than six (6) months from the date of this order.

I further order that within a further two (2) months, the owner of Lot 4 must at her cost engage appropriately qualified tradespersons to carry out the work recommended in the reports on 3 above, with the work to be commenced and continued so as to be completed within a reasonable time but no later than six (6) months from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0313-2001

“Tobermory” CTS 15022

The applicant, the Body Corporate for Tobermory, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The body corporate committee would like an independent adjudicator to visit the site to determine the cause of the water flow, what can be done to correct/minimise the problem & which party (owner or body corporate) is responsible for having the work performed & meeting the financial costs.

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)).

The order sought is a declaratory one that firstly seeks a determination as to what is causing water to flow from “private property” to common property, secondly, what can be done to remedy the problem, and lastly, who is responsible to meet the costs of the remedial work.

“Tobermory”, BUP16 was registered on 20 September 1965 and comprises 6 lots. Under the Act, a BUP (building units plan) is now known as a building format plan.

Given that all 6 lots voted to lodge this application, the owners would be aware of the circumstances surrounding this application. Therefore, I do not intend to set out fully, the history of the building or the current situation regarding the problem.

An inspection of the parcel was carried out on 11 September 2001. The report indicates that water from a deck attached to lot 4 is seeping through a large crack and into the garages of lots 1, 2 and 4 below. Water is also running from the deck and down the outside face of the garages, causing damage to doors etc and staining brickwork. It is also reported that water is seeping from garden beds on the deck through to the outside face of the building causing staining to the brickwork

Section 109 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) deals with the body corporate’s responsibility for maintenance of common property. More particularly, section 109(2)(b)(ii) of the Standard Module specifically deals with the body corporate’s responsibility to maintain certain areas of the scheme that are not common property. The section states-

Duties of body corporate about common property—Act, s 114

109.(2) To the extent that lots included in the scheme are created under a

building format plan of subdivision, the body corporate must—

(b) maintain the following elements of scheme land that are not
common property in a structurally sound condition—

(ii) roofing or other covering structures providing protection;

The concrete deck above the garages of lots 1, 2 and 4 is shown on the registered plan as part of lot 4. The deck in effect provides a roof or covering for the garages below and under the provisions of the above section, the body corporate is responsible for any repairs to the deck to prevent water entering the garages below. Similarly, the body corporate must ensure that any water runoff from the deck is properly drained away to prevent any damage to the common property.

The garden beds located on the deck are internal to, and therefore part of lot 4. The inspection report tends to indicate that there is no waterproofing applied to the garden beds. This, it would appear is allowing water to seep through the back of the garden beds to the outside walls and apparently staining the brickwork.

Section 120(2) of the Standard Module provides that the owner of a lot must maintain the lot in good condition. This would also include an owners obligation to ensure that any event occurring on the lot does not cause any subsequent damage to the common property.

The application has requested that an adjudicator determine what has caused the damage and what can be done to correct it. The problems apparent here are such that a person qualified in this field (e.g. an engineer or a qualified builder) will need to be engaged to fully investigate and report on the most appropriate method considered necessary to address them.
Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the circumstances I am satisfied that an order should be made in the terms authorised by section 62(4) of the Standard Module. The meeting shall be deemed to be the first annual general meeting. As this order is final in its determination of the matter, no further order will be made.
I therefore intend to order that the body corporate engage a suitably qualified person to carry out the investigation and to provide a written report on:

1. how to seal the deck or otherwise, to prevent water seeping into the garages, and

2. how to take water away from the deck to prevent it running down the outside face of the building and,

3. how to prevent water from seeping from the garden beds to the outside face of the building.

I intend to order that the body corporate meet the costs of the work necessary to comply with 1 and 2 above.

I also intend to order that the owner of lot 4 meet the costs of the work necessary to comply with 3 above.