Helensvale Villas [2002] QBCCMCmr 587 (23 September 2002)

P J HANLYREFERENCE: 0313-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7889
Name of Scheme:	Helensvale Villas
Address of Scheme:	11 Lindfield Road HELENSVALE QLD 4212

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

Betty Ivy Campbell, the owner of lot 24



I hereby order that, within 1 month of the date of this order, the body corporate for Helensvale Villas shall pay to the applicant, Betty Ivy Campbell, the sum of $979.00 by way of reimbursement for repairs to the water damaged lounge ceiling of lot 24.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0313-2002

“Helensvale Villas” CTS 7889

The applicant, Betty Ivy Campbell, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Reimbursement of monies paid by myself to repair my lounge ceiling.

Section 223(1) of the Act 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 states “due to lack of maintenance to my roof tiles, water damage occurred in my garage and lounge room ceilings. After phone calls to Helensvale Villas body corporate they refused to pay for repairs to my lounge ceiling. After a few weeks the body corporate paid for my garage ceiling to be repaired.”

The body corporate committee was invited to respond to the application. The submission from the body corporate manager, on behalf of the body corporate committee, stated that the body corporate’s insurers regarded the damage to the applicant’s lounge room ceiling as a maintenance issue, and would therefore not cover it under the insurance policy. Copies of relevant correspondence were provided.

On 24 July 2002 I spoke by telephone with Mr Danny Zerbst, the principal of All Hours Walls and Ceilings, who advised me that the ceiling in the applicant’s lounge room was definitely water damaged, as the water stains were evident on the gyprock at the time that he inspected. Mr Zerbst explained to me that the glue used to fix the gyprock sheets is water based, and when the water penetration occurred through the roof, the glue dissolved, and the weight of the gyprock sheets was then too much for the nails to hold. Mr Zerbst further explained that the nails were smooth sided nails into pine trusses, which was the method used at the time of construction, whereas now builders are required to screw the gyprock sheets to fix them in place.

I then requested the body corporate manager to provide me with further details of the repairs carried out to the roof of the scheme. I note that repairs were carried out on 30 March 2001, which entailed the repointing of tiles over various lots, including the applicant’s lot, as well as replacing broken tiles as required.



Section 227 of the Act provides the mechanism by which damage is to be repaired or compensation paid. That section states:

227 Order to repair damage or pay compensation

(1) If the adjudicator is satisfied that the applicant for the order has

suffered damage to property because of a contravention of this Act or the

community management statement, the adjudicator may order the person

who the adjudicator believes, on reasonable grounds, to be responsible for

the contravention—

(a) to carry out stated repairs, or have stated repairs carried out, to

the damaged property; or

(b) to pay compensation of an amount fixed by the adjudicator.

Example—

A waterproofing membrane in the roof of a building in the scheme leaks and there is

damage to wallpaper and carpets in a lot included in the scheme. The membrane is part

of the common property and the leak results from a failure on the part of the body

corporate to maintain it in good order and condition, the adjudicator could, on

application of the lot’s owner, order the body corporate to have the damage repaired or

to pay appropriate compensation.

(2) The order cannot be made if—

(a) for an order under subsection (1)(a)—the cost of carrying out the

repairs is more than $75 000; or

(b) for an order made under subsection (1)(b)—the amount of the

compensation is more than $10 000.

In this instance, the applicant has suffered damage to the ceiling of her lounge room, and the tradesperson who repaired that damage has confirmed that the damage was caused by water penetration through the roof. The body corporate records confirm that the roof required repair because of storm damage. The water damage to the lounge ceiling is a direct result of the storm damage, and/or broken tiles on the roof, both of which were the responsibility of the body corporate to repair under section 109 of the Body Corporate and Community Management (Standard Module) Regulation 1997, by which this scheme is regulated.

Accordingly, the applicant is entitled to be compensated for the costs expended by her in repairing her lounge room ceiling. The invoice dated 29 May 2001 from All Hours Walls & Ceilings reveals that Mrs Campbell paid the sum of $979.00 for those repairs. I have ordered that the body corporate reimburse her in that amount.