Lucaya [2002] QBCCMCmr 339 (29 May 2002)

DP GardinerREFERENCE: 0745-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17792
Name of Scheme:	Lucaya
Address of Scheme:	6 - 10 Fank Street COOLUM BEACH QLD 4573

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

Mr Helmut Gottfried Schmidt, the Owner(s) of lot 9



DP GardinerI hereby order that the application for an order that the Body Corporate Professionals pay for the cost of repairs and consequential losses due to water penetration and water entry is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0745-2001

“Lucaya” CTS 17792

The applicant Mr Helmut Gottfried Schmidt, the Owner(s) of lot 9, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“I am seeking an order against the Body Corporate Professionals by which the Body Corporate Professionals will:

1. replace the badly damaged carpet.

2. make amends and compensate for the occurred damages.

3. the still existing defects are finally being removed:

• arrange for repair works on both terraces to be completed to the extent that the water will finally run off into the existing drains and the “hollow-layed” tiles are being replaced..

• The leaks from the shower affecting the carpet in the hallway are being fixed.

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 sets out the history of his dealings with the Body Corporate Professionals and the responses he has received.

I have annexed to these reasons a copy of the plans for lot 9 which is located on levels D and E of the building. These plans show that the terraces in question are within the boundaries of Lot 9. As a result, it is the responsibility of the applicant to maintain all improvements which are located within the boundaries of his Lot, not the responsibility of the body corporate.

The applicant purchased Lot 9 in October 1994. The problems of which the applicant complains in respect of water penetration from the terraces on levels D and E have been present from the outset.

With respect to the “hollow-layed” tiles, I have not been provided with any technical information regarding this part of the applicant’s complaint. In any event, I consider that the responsibility for rectification of any defective tiles rests with the applicant as the tiles have been laid within the external boundaries.

Regarding the claims made in relation to leaking drainage pipes from the shower, I have not been provided with any information which sheds light on the origin of these leaks. It would have been useful to have had at least a report from a plumber regarding the cause of the leaks. I have been given nothing to go on which might have assisted me in my adjudication of this dispute.

I have read the correspondence with the Queensland Building Services Authority (the BSA). Whilst I am surprised that the BSA has not investigated this matter in greater detail or issued a direction to the original builder, that is not a matter for me to determine other than to observe that it may be prudent for the applicant to obtain his own legal advice about the obligations of the original builder, Murphy Builders of Lot 3, 103 Brisbane Road, Mooloolaba and the BSA in these circumstances.

In the result, I decline to make the orders sought by the applicant as no basis has been established justifying such a result.

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