Donard [2002] QBCCMCmr 136 (14 March 2002)

DP GardinerREFERENCE: 0623-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13030
Name of Scheme:	Donard
Address of Scheme:	8 Doris Street HILL END QLD 4101

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

Ms Maura Connolly, the Owner of lot 30



I hereby order:

1. that the body corporate take action under its insurance policy to have repairs carried out for the removal and replacement of water damaged beech pre-finished panel flooring by using the same materials or such other materials as may be mutually agreed to by the Applicant and the body corporate .

2. that the Applicant allow reasonable access to tradesmen nominated by the body corporate for the purpose of preparing quotations for the repair of the damaged flooring in accordance with the above order.

3. that the repair work be completed within 28 days of the date hereof or such further period as may be agreed to by the Applicant and the body corporate .

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0623-2001

“Donard” CTS 13030

The applicant Ms Maura Connolly, the Owner of lot 30, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“that the body corporate pay for the cost to remove and replace water damaged beech pre-finished panel flooring in unit 30, “Donard”, Doris Street, Highgate Hill.”

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 Applicant has set out a lengthy summary of events which have occurred in the course of discussions with the Body Corporate regarding this decision.

The following is a concise chronology of events:-

• On the 31^st March, 1997, water penetration resulting from a storm caused damage to part of the timber / parquetry floor in the dining area, a quotation obtained for repairs estimating in a total cost of $375.00. The claim for insurance was lodged with the applicant’s insurer on the 7 April 1997. Following discussions with her insurer, the Applicant decided that as the Body Corporate was planning to refurbish the building and rectify the water entry problem, repair of the floor should await finalisation of the Body Corporate work.

• Further damage resulted from water penetration as a result on severe storm on 13^th October 1998 which caused more extensive damage to the kitchen dining area, the cost of repair work being quoted as $2,500.00 by Traditional Hardwood flooring.

• The Applicant has provided correspondence beginning with the 27^th September 1998 which supports her contention that the Body Corporate has previously been aware of the applicants claim for reimbursement / repair of flooring due to water penetration.

• On the 2^nd June, 2000, the Applicant’s insurer, AAMI, told the applicant that it would not indemnify her for an amount in excess of the original repair cost of $375 with any further damage that occurred as a result of a water proofing not taking place being the responsibility of the Body Corporate in the view of AAMI.

• On the 13^th July, 2000 the Applicant wrote to AAMI asking it to reconsider its decision and pay for the full cost of repair of the floor.

• In its reply dated 28^th July, 2000, AAMI advised that it was a not liable for any damage because delay on the part of the Body Corporate appeared to be the reason for the additional damage occurring.

• On 5^th November, 1999 the Applicant wrote to the chairman of the Body Corporate regarding the problems caused by water penetration into her unit and discussed various aspects of a quote provided by TA Taylor relating to the water proofing of the external base of the building.

• At a Body Corporate meeting held on the 16^th December, 1999, an Extraordinary General meeting, the subject of waterproofing was discussed with two quotes being tabled for discussion. A motion proposing acceptance of the quotation from OPAT for work totalling $98, 268.00 was carried.

In its response to this application the Body Corporate by letter dated 12^th December, 2001 raises two contentions:-

1. The request by Ms Connolly to replace the flooring was never tabled or verbally requested by the Body Corporate. Up to the time of receiving information (Notice inviting submissions) from the Commissioner, the Donard Body Corporate was not aware that the contents insurance claim had been unsuccessful, nor was there a request for payment made of the Body Corporate, let alone a dispute arising from this matter.

2. Upon receiving the “Application to resolve a dispute” a committee member (Yvonne Van Velzen) contacted Maria Connolly on Thursday 6^th December, 2001 requesting access to view the damaged floor which was refused as was a request by the Body Corporate to allow a flooring contractor access.

Whilst the Body Corporate does not dispute the fact that the applicant has a valid claim, it claims that it has the right to explore this claim through the Body Corporate insurance and Ms Connolly’s insurance. In my view, the Body Corporate may make a claim on its insurance policy in respect of the rectification of the damaged floor, but is not entitled to make any claim upon the Applicant’s insurance policy.

It appears that the water proofing work to which the quotation by OPAT relates was completed in about September 2000.

With respect to the comments made by the Body Corporate that it had not previously been advised about the increase claim by the Applicant, the Applicant in her letter of 18 October, 1998 advised the Body Corporate that significant damage had been caused as a result of a further storm on 30^th October, 1998 with the floor being badly damaged by water entry. Again on the 15^th November, 1998, the Applicant in a letter to the Body Corporate manger which was circulated to the chairman of the Body Corporate mentioned further water penetration. The issue of water penetration was again raised in the Applicants’ letter dated 5^th November, 1999 to the Body Corporate.

In such circumstances, the Body Corporate has been aware for some considerable time that further water penetration has occurred which caused consequential damage to the timber floor, although the repair cost of the further damage does not appear to have been quantified.

The quotation to which the Applicant refers for the rectification of costs claimed of $5, 603.00 is a quotation by Roy Miller Cork Tiling dated the 30^th October, 2000. Understandably, the Applicant was forced to wait until the external water penetration rectification had been completed before obtaining a quote for rectification of water damage.

It is apparent from the circumstances set out above that it has taken a considerable period of time for rectification of water penetration by the Body Corporate to be completed. Whilst it is reasonable to expect that such a process would take some time, the length of time taken in this case has been inordinately long.

As the quote from Roy Miller Cork Tiling for $5603 is dated 13 October 2000, an updated quote should be obtained. As I have ordered that the rectification work be carried out at the expense of the Body Corporate, it is only fair that a tradesman skilled in the laying of timber flooring be permitted access to the Applicant’s premises for the purpose of supplying a quotation to the Body Corporate.

On 14^th March 2002, I conducted a telephone conference with the Applicant and Ms. Van Velzen As a result of that conference, the Applicant has agreed to allow access to tradesmen nominated by the body corporate for the preparation of quotations as required by the body corporate’s insurance policy. Access is limited to tradesmen with no entry allowed to members of the body corporate at the specific request of the Applicant, with reasonable notice to be given to the Applicant.
During the same discussion, the Applicant indicated that she may prefer the use of a different flooring material to the original flooring damaged being beech pre-finished panel floorings, the orders having been drafted to allow for such a contingency. Because of the delays that have occurred, repairs are to be carried out within 28 days from today.

In the result, I make orders consistent with the reasons expressed above.