Wanganui Court [2002] QBCCMCmr 154 (22 March 2002)

DPGardinerREFERENCE: 0650-2001

AMENDED ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14901
Name of Scheme:	Wanganui Court
Address of Scheme:	59A Ormadale Road YERONGA QLD 4104

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

Mrs Noela Keren Thompson, the Owner of lot 2



I hereby order that:

1. the body corporate pay to the applicant the sum of $2183.00 as reimbursement or reasonable compensation for expense incurred by the applicant as a result of the omission on the part of the body corporate to maintain and rectify defective drainage being part of, or located upon, the common property.

2. the body corporate pay invoices numbered 4006 4007 and 000081 4008.

3. the body corporate rectify any defective drainage forming part of, or located upon, the common property.

4. the body corporate call a general meeting of its members to vote on a resolution to fix a special contribution to be levied on the owner of each lot towards the liability to pay Massa Plumbing and Marian Constructions in accordance with their respective lot entitlements in the event that there is insufficient money in the sinking fund to meet these liabilities and the liability to pay the applicant the said sum of $2183.00.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0650-2001

“Wanganui Court” CTS 14901

The applicant Mrs Noela Keren Thompson, the Owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“The order I am seeking is for the Wanganui Court Body Corporate to pay-

1. Massa Plumbing invoice no.4007 $915.64

2. Massa Plumbing invoice no.4008 $176 $ 1,091.64

To reimburse Noela Thompson (owner of lot 2)

3. Massa Plumbing invoice no.4006 $495

4. Massa Plumbing invoice no.000081 $1,688 $2,183.00


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)).

In the supporting grounds, the applicant describes problems arising with blocked drains causing sewerage to “back up’ and overflow into her lot as well as similar problems with waste water drainage.

From the history provided by the applicant, sewerage seeped into the bathroom and laundry of her lot in November 2000 which the rectifying plumber attributed to blocked sewerage pipes and blocked drains with the body corporate unable to be advised of the problem because secretary of the body corporate was overseas.

The issue of thev sewerage and drainage problems were discussed at the annual general meeting held on 5^th December 2000 with John Wallace, a building contactor, requested to investigate and report to the secretary of the body corporate if the services of a plumber were needed

Following complaints by the occupiers of lot 2 about the discomfort caused by sewerage seeping through the walls and the blocked toilet together with unpleasant odours, the applicant wrote to the secretary seeking urgent attention to these matters. The applicant contends that no response was received to this letter.

On the 5^th February 2001, continuing complaints from the occupiers of lot 2 about the same matters prompted the applicant to write a second letter to the secretary of the body corporate regarding these issues, no response being received

On the 1st March 2001, following the decision by the occupiers to vacate the premises, a third letter was written to the secretary of the body corporate requesting the engagement of a licensed plumber to investigate the problem. No reply was forthcoming.

On 21^st March 2001, John Wallace forwarded a report to the applicant in which he asserted that, without specifically referring to unit 2, he had been on site on 3 occasions to inspect the combined sewerage duct in lot 1 without locating any problems.

Following the departure of the occupiers from lot 2 on 25^th March 2001, the applicant wrote to all other owners on the 23^rd April 2001 setting out her concerns about the sewerage and general drainage situation. No response was received to this correspondence from any of the other lot owners.

On 27^th June 2001, the managing agents contacted the secretary of the body corporate after further blockage of the toilet occurred. The secretary contacted John Wallace who did not offer a solution to the problem.

The managing agents then contacted Massa Plumbing to investigate, the advice received being that the plumbing was far from satisfactory.

On 27^th July 2001, the tenant occupying lot 2 reported that the shower was blocked and “backing up” into the bathroom. Massa Plumbing and Marian Constructions attended and performed work as detailed on their respective invoices.

On 9^th August 2001, Massa Plumbing was called to lot 2 because the shower had “backed up”

On 11^th and 24^th September 2001, letters sent to the body corporate seeking payment have not been answered.

Submissions in response to this application have been received from all lot owners, either individually or as part of the response from the body corporate. I have read those submissions carefully and taken into account the information therein contained.

Essentially, those submissions do not challenge the applicant’s version of events on issues of importance. Rather, those submissions assert that the amounts charged are excessive, that incorrect procedures were adopted which caused the work to be more expensive than would have been the case had the matter been left in the hands of the body corporate.

When evaluating these competing contentions, I do so fully bearing in mind that the problem is one of sewerage and waste water drainage requiring prompt attention because of the health and sanitary risks that arise in such circumstances.

Moreover, it must also be borne in mind that the applicant was obliged to act to rectify the problem as soon as practicable in order to limit the consequences caused by the blockages in question.

There are three invoices rendered by Massa Plumbing, details being:

Invoice 4007

This invoice relates to work done on 27/6/2001. The details recorded on this invoice directly relate to work which had to be performed whilst endeavouring to locate and remove the blockage. The plumber made an express notation on the invoice that the blockage was in a common drain that also picked up fixtures to an upstairs unit and was a body corporate problem.

In the submissions forwarded in opposition to the application, criticism is made of the methodology employed by Massa Plumbing. I do not accept this criticism as being either fair or timely. Massa Plumbing were called in to attend to sewerage problems which Mr. Wallace had suggested in his report dated 21 March 2001 as being the responsibility of the applicant following his earlier attendance on site.

In these circumstances, I do not think the body corporate can fairly object to the approach taken by Massa Plumbing of conducting investigative work from within lot 2 when its own report impliedly suggested this to be the correct approach. I also do not think the criticism made by Mr.Esler properly take into account the need to urgently rectify the sewerage blockage. Whilst the approach contended for by Mr. Esler may well be correct in different circumstances, that approach is not appropriate in the case of sewerage blockage of the character disclosed in respect of lot 2.

It has also been contended that the body corporate should escape liability for these invoices because the work performed did not rectify the drainage problem in the common area. I do not accept this submission because the work for which the applicant claims was required because of the blockage. Putting it another way, this work would not have been necessary had the body corporate rectified the drainage problem in the common area.

I find that the body corporate should indemnify the applicant for the payment of this invoice.

Invoice 4006

This invoice relates to work undertaken on the 22^nd August 2001 because of blockage of the shower drain which was flowing back into the bathroom. Whilst the precise cause of the blockage was not divined, the remark that the broken pipe found some 6.5 metres from the shower waste and the reference to inspection via the manhole permits the drawing of an inference that on the balance of probabilities the blockage was located externally to lot 2.

With respect to the criticism advanced in the submissions, I repeat the comments which I made in respect of invoice 4007. I consider that criticisms made in hindsight as here do not provide a proper basis for reviewing the work done as due regard is not given to the need for urgency.

I find that the investigative steps undertaken as described .in this invoice were appropriate and reasonable and accordingly the expense thereof is one for which the body corporate is liable.

Invoice 4008

The work described on this invoice is the clearage of blockage caused by sanitary napkins located at some 6.5 metres from the shower waste pipe. There is a notation to the effect that a large 100 mm. cutter could not be pushed through the sewer line at approximately 7 metres possibly due to a defective pipe in the common area of the drain which is a body corporate problem as the lot above is connected to this line.

As a result, I find that the body corporate is liable for this expense.

Invoice 000081

This invoice is different in that it reflects building work performed in conjunction with plumbing work defined in the invoices rendered by Massa Plumbing. I consider that the work so described was necessary and reasonable. Regarding the amount charged, I recognise that such rectifying work is quite time consuming and therefore much more costly than is original work.

Accordingly, I consider that this expense should be borne by the body corporate.

CONCLUSION

For the reasons set out above, I have concluded that the body corporate is liable for the work detailed in the invoices.

Section 227 of the Body Corporate and Community Management Act 1997 permits compensation to be paid in circumstances which arise here. Because of the fining I have made in respect of liability, it becomes necessary to apportion payment as the applicant ought to bear 16% of the cost in accordance with her lot entitlement.

Applying this formula, the body corporate should pay to the applicant the sum of $ 916.98 as this represents 84% of invoices 4007 and 4008.

With respect to this amount and the remaining invoices which total $3274.64, there may be a need on the part of the body corporate to levy a special contribution pursuant to section 95 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) to pay this expense if there be insufficient funds in the sinking fund (see section 94(3)).

In order to meet this contingency, I order the body corporate to call a meeting of its members to vote on a resolution to fix a special contribution to be levied on the owner of each lot towards the liability to pay Massa Plumbing and Marian Constructions in accordance with their respective lot entitlements in the event that there is insufficient money in the sinking fund to meet these liabilities.

Finally, I also include an order requiring the body corporate to rectify defective drainage wherever located forming part of, or located upon, the common property to allow for any rectification work yet to be undertaken..