Donard [2002] QBCCMCmr 5 (8 January 2002)

C G YOUNGREFERENCE: 0677-2001

INTERIM 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 the Body Corporate,

C G YOUNGI hereby order that David Barry KIRBY and Georgina Lee-Anne KIRBY, the prior owners of Lot 5, are jointly and severally responsible to immediately engage Britnell’s Plumbing Service to carry out repair work to the bathroom of Lot 5 as described in its Quote No. 597 of 17 December 2001 at a cost of $495, as soon as is reasonably possible, and to either pre-pay the quotation amount or lodge it in trust as mutually agreed with Britnell’s Plumbing Service. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0677-2001

“Donard” CMS 13030

The applicant Body Corporate has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), for the repair of the bathroom floor of Lot 5 to prevent further water penetration through the floor into Lot 2 below.

The applicant has also sought the following interim order of an adjudicator, quote -

The Body Corporate considers this matter urgent as after trying for several months to have the owner of Lot 5 attend these repairs the body corporate has been made aware that Lot 5 has now been listed “For Sale” and as such wish to see this matter resolved by the current owners.

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)).

In the supporting grounds, the applicant states that the leak into Lot 2 was first reported to the body corporate in July 2001. Britnell’s Plumbing Service (“the plumber”) was engaged by the body corporate to fix the problem with the cost being set against the respondents, the Kirby’s. Water penetration again occurred in September 2001 and the plumber was again called to repair the problem. The plumber said that the problem arose from the unprofessional installation of the washing machine drainage system, and that while he could again make running repairs, the drainage system needed to be rectified and the bathroom/laundry floor fully waterproofed.

In a submission to the application by the owner of Lot 2, Maurice McCallum, he said that leakage had again occurred on 22 October 2001 and this time had tracked along the ceiling to a bedroom built-in wardrobe.

In view of the continuing nature of the water problem, it seems necessary that it should be rectified promptly by the comprehensive repair advised by the plumber.

In order to resolve the dispute as promptly as possible, after seeking written submissions to the application from the Kirby’s, and the owner and tenants of Lot 2, I conducted a teleconference between Amanda de Fina, a member of the Body Corporate Manager company, Body Corporate Services Pty Limited, representing the applicant body corporate, and the respondent David Kirby.

At the time of the teleconference, the Kirby’s had only recently sold their lot, however as they were owners within the meaning of section 182 of the Act at the time of application, their standing and liability under the legislation continued, allowing continuing jurisdiction to determine the matter.

During the teleconference, Kirby agreed that comprehensive repairs to the bathroom/laundry were necessary and he agreed that it was his responsibility under the legislation to meet the cost of the repairs. It was agreed that the work should be carried out within the next month. The Body Corporate Manager subsequently advised on 20 December 2001 that the work had not been carried out. On 7 January 2002, Kirby advised this office that tradework was generally suspended over the Christmas/New Year holiday period, but that he would now be able to engage the plumber. He also agreed that, if necessary, he would prepay or lodge the cost in trust. This order formalises the requirements of the Kirby’s and provides that the engagement of the plumber be undertaken immediately and that the plumber be required to carry out the work as soon as possible.

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.