Solnamara [2003] QBCCMCmr 325 (14 January 2003)

Last Updated: 7 September 2007

C G YOUNGREFERENCE: 0533-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11625
Name of Scheme:	Solnamara
Address of Scheme:	202 The Esplanade, BURLEIGH HEADS QLD 4220

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

C G YOUNGI hereby order that within one (1) month of the date of this order, the body corporate must reimburse the sum of One thousand One hundred and Thirty two dollars and Forty five cents ($1,132.45) to Clive Peterson, the owner of Lot 39, for moneys expended in attempting to identify and rectify the problem of low water pressure to his lot subsequently found to be the common property pump and therefore the responsibility of the body corporate. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0533-2002

"Solnamara" CTS 11625

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

"Mr Peterson is the owner of Lot 39 at Solnamara. He is claiming from the Body Corporate reimbursement of $1,132.45, being expenses incurred by him in investigating waterflow and pressure problems at Lot 39. The Committee of the Body Corporate, given the circumstances of the case, is not clear as to its liability, and, in any case, is not certain if it has the power to reimburse expenses so incurred. At its meeting on 31^st July 2002, the Committee resolved to seek an adjudicator’s order covering liability and, if applicable, quantum. Mr Peterson has been advised and has not objected to this course being followed."

JURISDICTION:
This is a dispute between the body corporate (the applicant) and an owner (respondent Clive Peterson owner of Lot 39), concerning reimbursement sought from the body corporate for the cost of investigations by a plumber regarding low water pressure in the respondent’s lot. This is therefore a matter that comes within the dispute resolution provisions of the legislation (see sections 182(a), 183(1)(a) and 223(1)(a) of the Act).

The body corporate committee has lodged the application with the consent of the respondent. The wording in the order sought (see above) suggests that the application could be considered as one seeking a declaratory order regarding the committee’s position, however as a respondent was named I have treated it as a dispute. This course neither affects the process nor outcome, however I mention it to document that the "dispute" position of the committee is one of uncertainty rather than absolute refusal.

General powers of an adjudicator in making an order:
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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

APPLICATION AND SUBMISSION:
Under section 194 of the Act, a copy of the application was served on the respondent (Peterson) with an invitation to respond to the matters raised. He subsequently lodged a written submission including a number of copies of relevant documents.

The body corporate states that the costs being claimed by Clive Peterson ("Peterson") relate to work carried out in 2001 concerning a long-standing problem of low water pressure in Lot 39. The initial diagnosis for the low pressure, by an investigating plumber in 1999, was that the problem resulted from a nut and washer coming loose from the corroded stopcock valve for the lot and becoming lodged in the inlet pipe to the lot. The body corporate continued to consider this to be the cause of the continued complaints from Peterson of low pressure. It is important to note that, at the time, the body corporate’s pumping contractor also investigated the matter and reported that the building pump and pressurization equipment were operating normally. The body corporate states that its (current) pumping contractor inspected the pumping equipment again in 2002 after Peterson had obtained a report from plumbing consultants.

Peterson’s consultants were Dennis Cairns and Associates, Hydraulic Services Consultants ("Cairns"). Peterson has provided a copy of the reports by Cairns dated 5 December 2001 and 10 January 2002. Cairns proposed testing of the existing pressure set located at roof level where both the water storage tanks supplying water to the lots and the pumping system, are located. It was as a consequence of Cairn’s report that the body corporate engaged a contractor and ultimately replaced the pump and its associated plumbing.

Peterson states that the pump replacement work in 2002 has led to a significant improvement in the water supply. He contends that the investigations he funded led to the defective pump being identified and rectified, and that his water pressure problem was directly related to the faulty pump. He states that he incurred the costs on the assumption that the problem was isolated to Lot 39 and that, as the owner, he was responsible for the rectification.

The total claim of $1132.45 comprises the following -

1. John Hall Plumber & Drainer - 14 June 2001, $434.50. Investigated the low water pressure in Lot 39 but said was unable to remove an obstruction in the pipes.

2. BJ Garrett Painting & Property Maintenance - 13 June 2001, $106.70. This cost relates to the repair and repainting of holes in laundry walls. This work seems related to the exploratory work performed by Hall.

3. Charlie the Plumber - 31 December 2001, $591.25. The invoice reports that there was no blockage in the pipe work within lot 39, but that there was another problem with the internal pipe work in the building.

DETERMINATION:

Water is supplied to lots in the scheme from water storage tanks and a pumping system located at roof level. Levels M and N on the registered plan for the scheme (BUP 3539 ) constitute the roof of the building and are common property. The water storage tanks and the pumping system are utility infrastructure which provide a utility service (water) as defined in the Act (see Schedule 4).

Section 21 of the Act provides that the common property generally includes utility infrastructure which is therefore a body corporate responsibility to maintain under section 109(1) of the Standard Module. The water tanks and the pumping system are on the common property and therefore a responsibility of the body corporate to maintain. The body corporate is also responsible for maintaining any associated utility infrastructure, such as pipes, which do not satisfy the three criteria stated in section 21(1)(a) to (c), as is the case here.

Based on the information presented, I am satisfied that there is a direct connection between the defect in the water pumping system and the water pressure problems experienced in Lot 39. The body corporate initially relied on the advice of its pumping contractor that the pump was working properly, and while the body corporate was entitled to rely on that advice, its responsibility is not thereby lessened because the advice was evidently wrong. After being informed by Peterson that his low pressure problem was continuing, it could have carried out further no-cost or low-cost investigations, for example, contacting other lot owners or occupiers regarding their pressure, and testing water pressure in other lots. If such an investigation showed problems (as it should have), then it would likely have sought a second opinion on the pump’s operation and found the problem itself. The body corporate did not do so and as a consequence Peterson was obliged to fund his own investigations.

In doing so, his actions ultimately led to the resolution of a problem affecting many if not all lots. The previously unknown alterations to the pumping system which led to, or contributed to, the reduction in the water pressure, was or should have been performed with the knowledge or authorisation of the body corporate. Again, the body corporate’s lack of knowledge of this fact does not affect its liability. The consequence of the investigations initiated by Peterson was to identify the wider problem of the pump. It is curious that other lot owners did not make similar complaints over water pressure to the body corporate. Peterson has included a copy of an unsigned letter from EW Saunders, the owner of Lot 38, dated 25 January 2002 which states that Lot 38 has suffered the same water pressure problems.

In the circumstances I am of the opinion that it is most likely that the pump has been the cause of the low water pressure to Lot 39 (and other lots) from the beginning, and therefore the body corporate has always been liable for the rectification of the problem. Accordingly, I consider it is just and equitable in the circumstances that the body corporate reimburses all of the costs incurred by Peterson directed to identifying and rectifying the low water pressure problem in his lot. The body corporate may take some comfort from the fact that his endeavours have identified a building wide problem of their responsibility. I have therefore ordered accordingly.2n