Sir Fred Schonell Apartments [2001] QBCCMCmr 549 (31 October 2001)

RA MeekREFERENCE: 0329-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6197
Name of Scheme:	Sir Fred Schonell Apartments
Address of Scheme:	25 Sir Fred Schonell Drive ST LUCIA QLD 4067

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

June Blanche Porter, the owner of lot 8



RA MeekI hereby order that the body corporate must contribute the amount of $840 (eight hundred and forty dollars) towards the cost of repairs to the shower recess of lot 8.

I further order that the owner of lot 8, June Blanche Porter is to pay the balance of the cost of the repairs.

I further order that any future claims by the owner of lot 8, June Blanche Porter, against the body corporate for future or further repairs to her shower recess are now exhausted, and that the body corporate’s liability to contribute towards the cost of repairs to the shower recess of lot 8 will, subject to the terms of this order, be satisfied.

I further order that in respect of future repairs to the shower recess of any lot in the scheme, the body corporate shall be required to contribute a maximum amount of $1200 (one thousand two hundred dollars) on all repairs. If a full $1200 is not expended on any one repair, then the owner of that lot is entitled to further contribution by the body corporate for any future repairs up to a maximum aggregate total of $1200 for all repairs, provided that the further repairs relate to the aspect for which the body corporate considers itself responsible, and not, for example, to cosmetic repairs instituted by an owner.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0329-2001

“Sir Fred Schonell Apartments” CTS 6197

The applicant, June Blanche Porter, the owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order be made for the body corporate to pay the sum of $1200 to the repairer, AADA Traders and all legal associated 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)).

I do not intend to restate the history of this matter in any detail. What I do note is that this is the third time of which I am aware that this issue has been addressed to this office in the form of an application. The previous two applications were 0119 of 1998 and 0540 of 1999 respectively. In both those applications, the effect of the orders made was that the body corporate should pay the cost of repairs to the shower recess. The current applicant was the applicant in application 0119 of 1998, wherein the body corporate was ordered to pay the sum of $360 for repairs to the applicant’s shower recess.

In the previous applications, the adjudicator in each instance found that the repairs in question were prima facie the responsibility of the owner and not the body corporate. I quote from the adjudicator’s statement of reasons in the order for application 0119 of 1998 –

There are two issues for consideration in this matter. The first is whether the terrazzo floor is part of the common property, or is part of the utility infrastructure, and thereby part of the common property for which the body corporate is responsible to repair. The second is whether, notwithstanding that the terrazzo floor may not be part of the common property, the body corporate is estopped from refusing to pay the cost of repairs to same, having previously agreed to bear those costs.

Section 109 of the Standard Module provides that the body corporate must maintain common property in good condition. That section also defines the extent of the body corporate’s responsibility in relation to items which are not common property, but which fall within specified categories. I find that the applicant’s terrazzo shower floor does not fall within the parameters of section 109, for the reason that it is not common property, nor within the extended responsibilities of the body corporate under that section (vide section 109(2)).

However, section 21 of the Act enlarges upon the definition of common property by including all utility infrastructure, except such infrastructure which falls within the exclusionary provisions.. I find that the applicant’s terrazzo shower floor is utility infrastructure, in that it is a drain, by which the applicant’s lot is supplied with a utility service, namely drainage. I further find, however, that the said terrazzo shower floor falls within the exception to section 21, in that it solely relates to supplying drainage to the applicant’s lot, it is within the boundaries of the lot, and it is located other than within a boundary structure for the lot. It is, as some of the other owners have pointed out, a layer which is on the applicant’s title. The definition of boundaries of lots is as follows:

A lot, or part of a lot adjoining other lots and/or common property and within a structure, shall be bounded by the centre of floors, walls and ceilings, unless otherwise permitted by these Directions. (vide Registrar of Titles - Directions for the Preparation of Plans)

In these circumstances, section 120(2) of the Act requires that the owner of a lot must maintain the lot in good condition. If all other things were equal, I would therefore find that the applicant was responsible for the payment of the account from Custom Terrazzo Restorations. However, I am not persuaded that such an order should be made, in view of the conduct of the body corporate in this matter. This has been such that, in my view, the applicant is entitled to rely upon the approval given to her prior to commencement of the repair work in January, 1998.

...

I also note, as stated by the body corporate manager, that the committee of the body corporate decided to authorise the initial repair work because it had previously paid for similar repairs in other lots. I have also had regard to this fact in arriving at my decision.

In the adjudicator’s statement of reasons in the order for application 0540 of 1999, the adjudicator stated –

In the “Statement of Adjudicator’s Reasons for Decision” (hereafter “the Reasons”) to the interim order, I accepted that the order sought by the applicant was for the repair of the shower base in Lot 7 in order that repairs to her bathroom could proceed without any fear that the repairs would be rendered useless by further water damage. Also in those Reasons, I explained that for my decision to be a just and equitable one, I needed to take into account the manner adopted by the body corporate in the past in resolving identical water problems present in other lots. At page 2 of those Reasons I said –

It appears from past repairs of this nature, the present application and the comments by Porter concerning another two lots, that there is a general problem in the scheme building with leaking shower bases. While I would normally approach a dispute such as this by applying the law to determine the party responsible for the repair, the manner of past payments by the body corporate in resolving identical problems has led me to believe that it would not be just and equitable for me to follow that path in this instance. If I did I would need to consider the application of section 21 of the Act and section 120 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the “Standard Module”) in determining where the maintenance responsibility lies, and without making any definitive decision in the matter, I am inclined to the view that it lies with the owner.

However, section 223(1) of the Act allows adjudicators to apply the overarching principle for decisions to be just and equitable in the circumstances, and this allows me in this instance to take into consideration what practice has been previously adopted by the body corporate in resolving identical problems arising out of what must be a common building fault in perhaps all of the units.

In keeping with that principle, I held a tele-conference with the parties on 22 September 1999 during which I proposed that the body corporate committee consult with the owner of Lot 7 for the purpose of reaching an agreement on the sharing of repair costs, based on the method of apportionment for similar water penetration problems in the past. The interim order I made reflected these arrangements, which were agreeable to both the applicant and the respondent’s representative, the Body Corporate Manager, Doug Smith. The making of the final order has been held over pending advice from the committee on the outcome of its consultations with the owner of Lot 7.

I have now received advice from the Body Corporate Manager by letter dated 25 October 1999, stating that the committee and the owner of Lot 7 have agreed to the arrangement foreshadowed. That is, the committee has agreed to contribute $1,200 to the cost of the repairs and the owner of Lot 7 has agreed to meet the balance of the costs. The letter states that “it is envisaged repair work will be completed by the end of October”.

Accordingly, my final order incorporates the agreement reached which I consider is just and equitable in the circumstances. I have also imposed a time limit for the work to be completed, one well within the estimate relayed by the Body Corporate Manager and is a reasonable period for the applicant to expect to be able to start her own repairs.

I have quoted extensively from the previous two orders made in respect of this scheme on the aspect of repairs of shower recesses to evidence that, notwithstanding that both adjudicators considered that the repairs were prima facie the responsibility of the owner of the lot in question, the actions and previous dealing of the body corporate on this aspect mean that it was just and equitable that the body corporate be required to contribute to the cost of repairs to the shower recess.

I consider that the facts in the present application do not appear to be different in any significant respect. The applicant claims that her shower recess was in need of repair, and sought authorisation of the committee to undertake these repairs. The applicant alleges that this authorisation was obtained, and that on this basis she proceeded with the repairs.

However certain other owners have raised concerns or objections regarding this alleged authorisation. One owner in particular has stated that notwithstanding that he is a member of the committee, that he was not consulted on the question of authorisation of the repairs. This owner has stated in his submission that –

In a prior body corporate meeting, it was agreed that each unit would be able to claim partial costs towards initial shower tray repairs. ... It was also agreed this was not a requirement of the body corporate, but was accepted for the initial replacement of the shower tray. Note: This is not the result of “common building fault” but rather due to wear and tear from tenants in unit 8. It only affects unit 8 whereby the body corporate has already pair for the initial shower replacement in 1998. Without doubt, this shower repair remains the responsibility of the owner. It is unreasonable to expect the body corporate to pay for all shower repairs in perpetuity for all units. There is no precedent for the body corporate paying for multiple replacement of shower trays.

...It would be unreasonable and unjust to claim funds from other body corporate members for further repairs to the shower tray in Unit 8. Additional repairs would not be due to a “building fault” but to wear and tear from use. Further internal repairs remain the responsibility of the owner, which is fair and equitable. It is also just.

It seems to me to be clear that notwithstanding that, in all probability, the body corporate is not responsible for the repairs to the shower recess of each lot, the body corporate has established a practice in the past of contributing an amount, namely $1200, towards the cost of such repairs. The basis for this amount appears to be that it is the upper limit of committee level expenditure ($100 x 12 lots), although I might be incorrect in this assumption. This practice was acknowledged by the adjudicator in the order to application 0540 of 1999.

The principle objection of the owner who opposes the payment in the current application is that this is “the second round of shower repairs specifically for unit 8”. This owner further states that –

There is no precedent for the body corporate paying for multiple replacement of shower trays.

It seems to me that this owner is not opposed to a single payment to an owner for the repair of a shower recess, but rather to multiple payments or repairs.

There is evidence however to suggest that in fact the current repairs to lot 8 are not the same as the original repairs. The 1998 repairs, costing $360, were for repairs to cracks in the terrazzo floor of the shower recess, whereas, the current application seeks the cost of replacing the tray in the shower recess. I consider that the nature of these repairs is different. I further note that in relation to the first repairs, the body corporate was ordered to pay out $360 whereas, in the case of lot 7 (in application 0540 of 1999) the body corporate was ordered, and had already agreed to contribute, an amount of $1200 towards the cost of repairs.

It seems to me that it is fair and reasonable that the body corporate should contribute equally to the cost of repairs to each lot. What I intend to order is that the body corporate shall pay the amount of $840 in contribution towards the cost of repairs. The applicant will be required to make up any shortfall. Thereafter the applicant’s claim again the body corporate in respect of future repairs to the shower recess of her lot will be exhausted.

This will apply similarly for any other lot in respect of which the body corporate has already contributed towards the cost of shower recess repairs. If a full $1200 was not expended, then the owner of that lot is entitled to further contribution by the body corporate for any future repairs up to a total of $1200 for all repairs, provided that the further repairs relate to the aspect for which the body corporate considers itself responsible, and not, for example, to cosmetic repairs instituted by an owner. Whilst I do not know if the body corporate has paid a full $1200 in respect of other lots (excepting lot 7 which I know from the order in application 0540 of 2000 that it did) I consider that the extent of the body corporate liability to any future shower recess repair should be limited to $1200 in the case of each lot.

This order will result in a just and equitable outcome for all owners. Further, the determination is objective and will be easy to apply. Body corporate records will indicate which lots have already had repairs undertaken, and the extent of the body corporate contribution to such repairs. The body corporate committee should perhaps make up a schedule in this regard, and forward a copy to owners, so that all owners will know where they stand in respect of future repairs. I have ordered accordingly. n