Tobermory [2003] QBCCMCmr 31 (22 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0772-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15022
Name of Scheme:	Tobermory
Address of Scheme:	216 The Esplanade BURLEIGH HEADS QLD 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Paul ROGERS, as a co-owner of Lot 5,

I hereby order that the tender by All Areas Bathroom Renovations, principal and licensee Peter Stuart Wilson, dated 1 November 2002 for the amount of $9,580 (adjusted for any reasonable increase in price in line with this type of work generally), must be accepted by the body corporate and the work carried out as soon as possible.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0772-2002

"Tobermory" CTS 15022

The applicant, Paul Rogers of Lot 5, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That the quotation submitted by All Areas Bathrooms in the amount of $10,780 less $1,200 for work required by others, be accepted to enable Adjudicator’s Order dated 0313-2001(sic) to be complied with."

JURISDICTION:
This is a dispute between an owner (the applicant Rogers) and other owners (the respondents: Gwen Dixon, the owner of Lot 4; Hepron Pty Ltd, the owner of Lot 1 (directors Neil Dixon and Linda Dixon); and Hepron Pty Ltd and Palcourt Pty Ltd (directors as for Hepron Pty Ltd), the co-owners of Lot 6, concerning the engagement of a service provider by the body corporate to carry out waterproofing work to the deck of Lot 4 to prevent water penetration into the garages of Lots 1, 2 and 4 below, as determined in Order 313-2001 of 27 September 2001. This is a matter falling within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) however there are two jurisdictional issues that I need to address before continuing in determining this application.

Firstly, the applicant wrongly attributes Order 313-2001 to Mr Mobley of this office: I was the adjudicator who determined the order (Mobley completed the administrative task of signing the accompanying letter). I mention that because there is a rule, called the functus officio rule, which prevents an adjudicator (or court) from dealing again with a matter which the adjudicator (or court) had already finally determined. The question arising here is whether the subject dispute as to how the repairs should be carried out and who should carry them out, is really a matter of enforcement of Order 313-2001 to be actioned by the respondents in the Magistrates Court under section 288 of the Act. After consideration of the matter, I am of the view that I am able to proceed as the dispute concerns the scope and manner of the necessary repair work, rather than mere non-compliance with the order.

Secondly, the respondents Neil and Linda Dixon have made a written complaint to the relevant government minister alleging incompetence and/or a possible personal interest by a staff member of this office, in delaying this application being determined. They have made an analogous reference to the shorter time taken to determine a previous order, Order 322-2003. I can only say that adjudicators randomly take up files on a chronological basis after they have been administratively processed by the office (collated, submissions sought, notices sent, etc). Currently, files are taking in the vicinity of six months to be determined, as is the case with this application. The causes of delays are a matter or resources and large increases in applications caused mainly by the rising levels of unit ownership in community title schemes. The time taken to determine applications has varied over the years in accordance with the fluctuating level of resources and applications. I can state that I have no personal knowledge of, or relationship with, any of the owners in the scheme, and this matter will be dealt with solely on its facts and no other basis. If anything, in Order 313-2001 my determination was against the body corporate and favourable to the respondents, however that was merely the result of the application of the relevant law and, as with this application, persons and interests play no part.

For the above reasons, I know of no jurisdictional bar why I should not continue to determine this matter.

General powers of an Adjudicator in making an order:

Section 276(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 contractual matter about –
(i)	the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii)	the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
In accordance with section 243 of the Act, a copy of the application was provided to the respondents and to all other owners, with an invitation to respond to the matter of dispute raised in the application. All of the respondents representing Lots 1, 4 and 6 (Gwen Dixon, and Neil and Linda Dixon for Hepron Pty Ltd and Palcourt Pty Ltd), made a joint submission. The applicant Rogers viewed the submission and subsequently lodged a written reply (see sections 246 and 244 of the Act respectively).

The brief facts of the matter are as follows.

In early 2001, the body corporate made application for an adjudicator to determine: the cause of water penetration from the Lot 4 deck into the garages for Lots 1, 2 and 4 underneath, and the outside walls; how the problem could be rectified; and who is responsible for the necessary repair and rectification work. The following order was made by me for that application –

I hereby order that, within two (2) months of the date of this order the body corporate shall engage a suitably qualified person to inspect and report on the most effective way to –

1. prevent water entering the garages of Lots 1, 2 and 4 from the deck of Lot 4.
2. drain storm water from the deck of Lot 4 to prevent further damage to the garage doors and their fixtures and fittings and the common property walls.
3. prevent water seeping from the garden beds constructed on the deck of Lot 4 to prevent further damage to the common property walls.

I further order that within a further two (2) months, the body corporate must at its cost engage appropriately qualified tradespersons to carry out the work recommended in the reports on matters 1 and 2 above, with the work to be commenced and continued so as to be completed within a reasonable time but no later than six (6) months from the date of this order.

I further order that within a further two (2) months, the owner of Lot 4 must at her cost engage appropriately qualified tradespersons to carry out the work recommended in the reports on 3 above, with the work to be commenced and continued so as to be completed within a reasonable time but no later than six (6) months from the date of this order.

Obviously the time periods set in the order were never met, though Gwen Dixon has since removed the garden beds, and the repairs to the deck have not be carried out.

The applicant broadly states the position as follows. The applicant (and apparently the other two owners of Lots 2 and 3) says that the delays are the fault of the respondents who act and vote as a group (Gwen Dixon is reportedly the mother of Neil Dixon). Quotes were initially obtained from Frank Milla Homes and Evanspalm and the latter, the cheaper, was acceptable to the applicant and the owners of Lots 2 and 3 ("the applicant’s group"). However the respondents objected to Evanspalm on the grounds that it was not licensed to do the necessary work. A letter from the Building Services Authority dated 15 February 2000 stating that the work envisaged did not require a licensed person, was rejected by the respondents. The applicant’s group then sought acceptance of the alternative quote by Millaa Homes but Neil Dixon, who is a builder, refused this also, allegedly on the basis that the quote raised "vagaries and technical construction and legal flaws". The Body Corporate Manager (D Watkins) then asked Dixon to list out what he thought should be done to remedy the problem, which he subsequently did and referred to as a "Scope of Work". A copy of that document was provided to owners and forms part of the application attachments. The applicant subsequently obtained a quote from All Areas Bathroom Renovations, after showing its principal, Peter Wilson, Dixon’s "Scope of Work". Wilson said that some of the items listed were not necessary for rectifying the water seepage problem, and gave a quote of $10,780 on this basis. Dixon then objected on the grounds that All Areas Bathroom Renovations is not licensed for the work and it would be illegal to accept an unlicensed contractor. In summary, the applicant believes that he and the owners of Lots 2 and 3 have acted properly in trying to have the problem resolved but the respondents (especially Neil Dixon) have been unreasonable in their demands and have frustrated their attempts to have the problem rectified in a reasonable manner by a qualified person – he rejects the allegation by Dixon that he has acted in an incompetent manner. He also states that some contractors approached did not want Dixon instructing them in the work while others were reluctant to quote.

The respondent’s position is that the body corporate having been found to be responsible for the work, then it should do the work properly in accordance with the standards set out in Dixon’s "scope of work" and he estimates the work will cost between $12,500 and $15,000 if done correctly. The tenders by Evanspalm and Frank Milla (Miller?) Homes were for much less than this; Dixon found that Evanspalm had no licence (though the QBSA said none was required for the type of work) and the other’s tender was, as referred to above by the applicant, Due to vagaries and technical construction and legal flaws contained within this quote acceptance of quote was not forthcoming. Dixon states that after this, he prepared the "scope of work" due to the technical illiteracy of fellow unit holders and uncertainty as to work that was going to be undertaken. After receiving the quote from All Areas Bathroom Renovations, Dixon was unable to find any license for the principal Peter Wilson. The respondents complain that it is now over 1.5 years since the relevant order was made and believe that the applicant should be responsible for the cost increases in tender prices as they are a result of his incompetency and laid back approach.


DETERMINATION:
"Tobermory" was registered as a building units plan (now termed a building format plan) and comprises six residential lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").
The original licence number given for Peter Wilson, the principal of All areas Bathroom Renovations, was incorrect, and the correct one is 64205. A search of this number on the QBSA website at the date of this order, shows Wilson to have an active licence to contract with the public in the following three areas –

• Building Restricted Renovations – Wet Areas.
• Building Restricted to Renovations, Repairs and Maintenance.
• Waterproofing Application.

From the evidence before me it appears that Wilson is suitably licensed, and therefore suitably qualified, to carry out the type of work that is required to remedy the water leaking problem subject of Order 313-2001. I note that the concluding objection of the respondents in their submission was, The reason that no agreement can be reached is due to the unlicensed contractors being nominated by the Chairman (the applicant) to undertake the subject remedial work, which has now been met with the information that Wilson is indeed licensed. However, I have also noted the comments of the applicant concerning Wilson’s statement to him that all of Dixon’s "scope of work" was not necessary, and I assume that Dixon, if not all the respondents, are not happy with this view.

However, if Wilson is licensed to carry out wet area renovations, general building repairs, and waterproofing applications, then, on the face of it, his assertion that he is able to carry out the work appears correct. Too much time has been wasted already in getting the matter to this stage, and it should proceed as soon as possible to prevent further price escalations.

I note that the "scope of work" stipulates replacement tiles @ $28.50 a sq metre. I am unaware of the value of the present tiles, however the rule in such work is that the owner cannot expect to be put in a better position than before the repairs by way of either a better quality fitting, tile, etc, or additional items except as are necessary for the repair. If the respondents want a more expensive tile (or other item) then they must pay the difference between the replacement cost and the preferred item cost.

I have also noted the comment that there has been less leakage into the garage of Lot 2 since the removal of the gardens and pot plants on Lot 4 (Gwen Dixon).

In the circumstances, I have allowed the order by the applicant Rogers for All Areas Bathroom Renovations to carry out the repairs at a cost of $10,780 – 1,200 = $9,580. I have not included in my order any authority for Neil Dixon to supervise or instruct the contractor in regard to the work. Wilson is licensed and therefore presumably competent in his work and should be allowed to work without having to respond to another person, even though Dixon is a builder himself. The proof of the work will be in its function and finish. As the tender was given on 1 November 2002 some 8 months ago, it is likely that the price will have increased since – I have included a provision that if the increase is reasonably in line with that generally in the type of repairs, then the work can proceed on the authority of the order.