Lot Forty-Five [2001] QBCCMCmr 84 (14 February 2001)

P J HANLYREFERENCE: 0623-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1823
Name of Scheme:	Lot Forty-Five
Address of Scheme:	76 Kortum Drive BURLEIGH HEADS QLD 4220

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

Valcave Pty Limited, the owner of lot 4



I hereby order that the application for an order that the body corporate commission an appropriately qualified engineer/building consultant to investigate and report on the reason for the leakage of water into my unit from the common property, is dismissed.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0623-2000

“Lot Forty-Five” CTS 1823

The applicant Valcave Pty Ltd, the owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate commission an appropriately qualified engineer/building consultant to investigate and report on the reason for the leakage of water into my unit from the common property.

Section 223(1) of the Act 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 company nominee of the applicant states that he has been experiencing a continuing problem with water leaking into his lot since December 1998. He further states that the water is entering the lot through the external walls at the southwestern corner of the building nearest the building containing Haymans Electrial and the Leda Snack Bar. He further states that the problem did not exist until that building was constructed.

All owners were invited to respond to the application. A response was received from the owner of three of the other five lots in the scheme. This owner stated that the applicant was the original builder, and the building was never properly waterproofed. This owner further stated that the offending building, to which the applicant refers, appears to trap the subterranean water, which then soaks in to the lots, because of the lack of proper waterproofing.

The body corporate is responsible to maintain common property in good condition (section 114 of the Act and section 89 of the Commercial Module); however, the body corporate cannot be held responsible for a water seepage problem, which has been caused by the construction of another building. This is a matter in respect of which the applicant may be able to seek redress against the owner/s of that other building through the court system, but the applicant should obtain its own legal advice in this regard. As to the allegation from the owner who responded to the application, that the building was not properly waterproofed at the time of construction, then that is also a matter over which the body corporate had no control, and ordinarily, would need to be taken up with the original developer. In this case, however, the applicant was the developer.

I have dismissed the application.2n