Pioneer Bay Apartments [2001] QBCCMCmr 99 (19 February 2001)

P J HANLYREFERENCE: 0654-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16810
Name of Scheme:	Pioneer Bay Apartments
Address of Scheme:	St Martins Lane CANNONVALE QLD 4802

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

Sharon Lee Holland, the owner of lot 13



I hereby order that the application for an order that resolution 12 of the annual general meeting held on 25 October 1999 be upheld, is dismissed.

I further order that the body corporate shall, within 1 month of the date of this order, pay Paul J Tabell, Builder, the sum of $6564.20 being the cost of repairs as detailed in quotations dated 13 December 2000 carried out to lot 13 as a result of water damage caused by a split water main located on common property.





STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0654-2000

“Pioneer Bay Apartments” CTS 16810

The applicant Sharon Lee Holland, the owner of lot 13, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That resolution 12 of the annual general meeting held on 25 October 1999 be upheld.

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 applicant states that damage was caused to her lot as a result of water penetration emanating from a broken water pipe that runs under the building. The applicant states that the body corporate resolved on 25 October 1999 to reimburse her for lost rent and expenses not covered by insurance for the damage caused by the broken water pipe. The applicant further states that a motion considered by the body corporate on 9 November 2000 to confirm the earlier motion was defeated.

The body corporate committee was invited to respond to the application. A response was received from the chairperson, who stated that the committee had formed the view that the applicant should have had her own insurance, and that, in any event, the engineer’s report was inconclusive in determining whether the water came from an excessive wet season or from a broken water main.

Section 109(1) of the Standard Module provides that the body corporate must maintain common property in good condition. Water pipes fall within the category of common property under the extended definition of utility infrastructure in section 21 of the Act. The engineer’s report dated 11 February 2000 concluded that the leak in the water pipe had contributed to the water infiltration into the unit. In my view, the body corporate has not fulfilled its obligation to properly maintain common property, i.e. the water pipe, and therefore the applicant is entitled to have necessary repairs carried out at the expense of the body corporate (section 227 of the Act). I have been supplied with copies of two quotations, both dated 13 December 2000, from Paul J. Tabell, Builder, which relate to the repair of the water damage and the replacement of the floor covering. I am satisfied that the work detailed in these quotations was necessary, as the extent of the water damage has been referred to in the engineer’s report dated 20 April 1999 and also in the earlier report dated 25 May 1999 from Paul J. Tabell.

I note the view expressed by the chairperson that the applicant should have had her contents insured. It is, of course, the prerogative of any person not to insure their contents, and there may be times when such a decision results in significant loss to that person. However, the choice not to insure does not relieve the body corporate of its obligations under section 109(1) of the Standard Module (supra).

I do not propose to make an order for compensation in the form of loss of rent, legal expenses or interest, as the Act does not empower me to make orders of this nature. In any event, as I noted in my interim order, even if I were empowered to make an order in relation to loss of rent, it is my view that the applicant did not mitigate her own loss by having the repairs attended to as soon as she was aware that the body corporate insurers denied liability for the claim. This occurred prior to the annual general meeting held in 1999.

I also do not propose to allow the applicant’s claim for storage fees, and replacement of a bed and tables, as I have been provided with no receipts or any other form of supportive documentation.

I have noted that the body corporate resolved on 25 October 1999 to reimburse the applicant for loss of rent and expenses not covered by the body corporate insurance. However, that decision was effectively reversed by the body corporate at the annual general meeting held on 9 November 2000. Although I have ordered that the body corporate shall pay for the repair work carried out by Paul Tabell, I am satisfied that the body corporate has changed its view about the payment of loss of rent and other expenses.

On 16 February 2001 I spoke with Paul Tabell, the builder who quoted for the repairs to the applicant’s lot. He confirmed that he had completed the work detailed in his quotations dated 13 December 2000, but that the applicant has not yet paid for this work. I have therefore ordered that the body corporate shall, within 1 month of the date of my order, pay directly to Paul Tabell the sum of $6564.20.
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