Doncella [2002] QBCCMCmr 392 (17 June 2002)

C G YOUNGREFERENCE: 0354-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9193
Name of Scheme:	Doncella
Address of Scheme:	9 Brasted Street TARINGA QLD 4068

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

C G YOUNGI hereby order that the body corporate must promptly carry out the following rectification and cleaning work to Lot 5 -

1. carry out all necessary plumbing repairs to prevent the leakage of water into the lot and the lot situated below; and

2. clear the toilets of effluent so that it is in working order; and

3. clean the effluent and water damage to the lot, including the removal of flooded carpet and underlay and have them professionally cleaned, dried and re-laid,

and in so doing must ensure that any service provider engaged is professionally competent and the cost of the service is reasonable.


I further order that the body corporate, including any plumber, carpet layer or other service provider engaged by it, may enter upon Lot 5 at any time during the absence of the owner, Fay Dawn Edwards, from the lot, otherwise notice must be given in accordance with section 125 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

I further order that, if necessary, the body corporate committee may exceed its expenditure authority of $1,100 in authorising repairs and cleaning for the above purposes, and where appropriate later recover those moneys from the owner of Lot 5.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0354-2002

“Doncella” CMS 9193

The applicant Body Corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

1. Authority to enter the lot (unit 5) in order to carry out plumbing repairs. The plumber has not been able to ascertain if this is an owner’s or a body corporate responsibility (in relation to cost).

2. The authority to enter the lot (unit 5) in order to take whatever action is required to dry carpets that have been flooded. This work would be at the owner’s cost.

3. The authority to enter the lot (unit 5) in order to take whatever action is required to clean and clear toilets of effluent and to ensure that they are in good working order. This work would be at owner’s cost.

The applicant has also sought an interim order in the same terms as set out above.


JURISDICTION:
The matter has been brought as an application for an interim order in view of the urgency to rectify a burst pipe in Lot 5 which has both damaged the lot and is leaking into the lot below. The matter is also partly in the nature of an application for an emergency order provided for in section 103(1)(a) of the Standard Module regulations, though there has been no submission that the costs will be above the committee expenditure limit (11 lots times $100 =$1,100), though that is a possibility. The matter concerns maintenance of infrastructure and therefore falls within the dispute resolution provisions of the legislation (see sections 182, 183, and 223 of the Act, as well as section 103 of the Standard Module).

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION:
Under section 194 of the Act, the requirement to seek submissions from interested parties may be dispensed with and the application for the interim order (and final order) dealt with directly by an adjudicator. That course is considered appropriate here given that the lot has wet carpet and underlay that will both create a smell nuisance to other owners and attract vermin, as well as result in its rapid deterioration at the cost of the owner, Ms Edwards.

The body corporate says that it received a complaint from the occupier of Lot 2 that water was entering the lot through the ceiling and was running down an internal wall. Attempts to telephone the owner of the lot above, Fay Edwards of Lot 5, were unsuccessful but a committee member was able to gain access for a plumber to ascertain the problem. The plumber found that there was a serious leak, probably in the floor slab, and the carpets were flooded and toilet effluent had soiled internal walls. A plumber engaged by the occupier of Lot 2 was refused entry to Lot 5. Ms Edwards was concerned about allergies. Police have reportedly taken Ms Edwards into care for the purposes of assessment under an emergency examination order. Ms Edwards lives alone, is aged and there is no known relative.

The wet carpet and underlay need urgent removal and professional cleaning. The body corporate is seeking the authority to carry out the necessary repairs and cleaning, and access to Lot 5 for those purposes.


DETERMINATION:
In the absence of Ms Edwards and with no known relative who can act on her behalf, I am satisfied that the body corporate should take the necessary steps in both the interests of other owners and for the preservation of Ms Edwards property, to have the leak repaired and Lot 5 cleaned and restored.

Although the applicant has asked that orders be made as to the responsibility for costs, I am unable to do that in the absence of evidence as to the source and therefore the responsibility for the repairs. It may be that a claim under the body corporate damage policy or the owner’s contents policy, can be made. I propose to authorise the body corporate to carry out all necessary repairs and to have the lot and relevant contents (carpet, toilet) cleaned and restored. It will then be a matter for the body corporate to determine who pays, based on the findings of the plumber. A further application can be made if there is a dispute over cost responsibility.

I have also included an order authorising the committee to exceed its statutory expenditure limit, if that is necessary.

For the above reasons, I have made an appropriate order.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.

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