Tweed Lodge [2002] QBCCMCmr 64 (8 February 2002)

RA MeekREFERENCE: 0541-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8654
Name of Scheme:	Tweed Lodge
Address of Scheme:	11 Lloyd Street SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Nicole Tronc, the owner of lot 2

RA MeekI hereby order that it is the responsibility of the body corporate to repair the stormwater drainage pipe which is broken and in need of repair.

I further order that the two owners in the scheme will contribute equally to the cost of repairs of the stormwater drainage system.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0541-2001

“Tweed Lodge” CTS 8654

The applicant, Nicole Tronc, the Owner of lot 2, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) determining responsibility for the repair of the stormwater draining system servicing both lot in the scheme.

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 states that –

The stormwater system services the building for both lots. The drainpipes which run through my back yard are exposed and broken. They are not allowing the water to run properly. Because my lot is on the lower part of the block the water is building up and flowing over the top of the drain. This is causing an erosion problem that is cracking my brickwork.

On 5 June, 2001, the applicant sent correspondence to “Maria” of 1/11 Lloyd Street, Southport (Maria Szymanski is shown to be the owner of lot 1 in the scheme) which stated in part –

As a result of our brief conversation which took place last month, I submit three quotes and an extract of a recent building report. These quotes are to replace the storm water pipe which services the both lots. I personally find the quote from Robert Akes & Co Pty Ltd to be the most comprehensive. As this is a body corporate responsibility which is not active at present, I formally give seven (7) days for your written response to this matter and will be placing this matter with my solicitor if you fail to respond.

Attached to this correspondence were three quotes including the one from Robert Akes & Co Pty Ltd which was preferred by the applicant. The quote is for $286 to repair the “damaged stormwater pipe”. The quote states that the stormwater line is the main line for both units.

We have received a submission from a Mrs E C Munro on behalf of Mrs Maria Symanski. That submission states that there are in fact 4 units at Tweed Lodge and that the body corporate was abandoned some time ago for reasons unknown. I have checked the plan for the scheme and note that there are only 2 lots in the scheme.



In respect of the stormwater pipes, the submission states –

Unit 2 has been rented out a number of times and some person in that unit has planted trees which would interfere with the drainage system. The roots from these trees have damaged the drainpipes which Maria is totally not responsible. Perhaps Mrs Tronc can claim through insurance. ...

It seems clear that the responsibility of the stormwater drainage pipe servicing both lots is that of the body corporate. Given that the scheme is registered as a building format plan, then the body corporate is responsible for the exterior surface of the building, including the roof and the drainage system attaching to the roof (including the guttering and downpipes). At the guttering and downpipes service both lots, and are part of the common property of the scheme, then they are the responsibility of the body corporate to maintain, as are any pipes located on part of a lot, but which drain stormwater from the scheme generally.

In the circumstances, I intend to order that it is the responsibility of the body corporate to repair the stormwater drainage pipe which is broken here. Given that there are two owners in this scheme, then it is the joint responsibility of both owners to pay for the repairs to the stormwater drainage pipe. The cost of the repair should be divided equally between the two owners.
n