Westwood [2003] QBCCMCmr 500 (8 May 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0532-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15013
Name of Scheme:	Westwood
Address of Scheme:	55 Hillside Crescent, HAMILTON QLD 4007

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Westwood CTS 15013

I hereby order that the cost of replacement of the shower combination in lot 10 on 3 and 4 April 2001 was body corporate responsibility.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0532-2002

"Westwood" CTS 15013

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

The body corporate requires a ruling on which party is responsible for plumbing work performed in lot 10 to replace a shower combination.

Section 276(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 contractual matter about the engagement of a person as a body corporate manager or service contractor for a community titles scheme or 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)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

In the supporting grounds, the applicant stated that the shower combination was replaced urgently in April 2001 as the leaking water was dripping onto an electrical switchboard in the lot below. The applicant further stated that the body corporate paid for the replacement of the shower combination as the plumber advised that it was situated behind a wall within a common duct area. The applicant explained that the matter was complicated further by the fact that the owners of lot 10 are thought to have re-located the shower at some time in the past. The applicant believed that the previous location of the shower would have been on an internal wall, which would have made the replacement of the shower combination the owners’ responsibility.

The owners of lot 10 were invited to respond to the application. On 4 April 2003 a letter was received from Mr Ian Guy, a co-owner of lot 10, in which he stated that he purchased the lot by phone auction in the early 1990’s and the property has been managed ever since by his agents, Havig and Jackson Real Estate. Mr Guy confirmed that since he has owned the unit there has been no "relocation" of the shower. Mr Guy recalled only that the shower floor capsule had been resealed some time in the past, after floor leakage had been detected.

Ms Nickie Wainwright, the property manager at Havig and Jackson Real Estate, advised in a letter dated 16 April 2003, that she could find no evidence to support any changes having been made to the layout of the bathroom area during the term of their management. Ms Wainwright also enclosed a sketch of the bathroom area, provided by the current tenant of the lot, which depicted the location of the toilet, bath, shower and basin in the bathroom. The sketch showed that the shower is located on the northern boundary wall of the lot.

I accept Mr Guy’s evidence that the shower has not been relocated.

The body corporate’s responsibility for common property under section 109 of the Standard Module (by which this scheme is regulated), is extended under section 20 of the Act, which provides:

20 Utility infrastructure as common property

(1) Common property for a community titles scheme includes all utility

infrastructure forming part of scheme land, except utility infrastructure--

(a) solely related to supplying utility services to a lot; and

(b) within the boundaries of the lot (according to the way the

boundaries of the lot are defined in the plan of subdivision under

which the lot is created); and

(c) located other than within a boundary structure for the lot.

(2) However, common property does not include utility infrastructure

positioned within common property if--

(a) its positioning is the subject of an agreement to which the

original owner or the body corporate is a party; and

(b) under the agreement, ownership of the utility infrastructure does

not pass to the original owner or body corporate.

Example of utility infrastructure for subsection (2)--

Cable television wires positioned in the service shaft of a multistorey building that is

scheme land for a community titles scheme, if the wires remain in the ownership of a

cable television provider.

(3) In this section--

"boundary structure", for a lot included in a community titles scheme,

means a floor, wall or ceiling, other than a false ceiling, in which is

located the boundary of the lot with another lot or common property.

Utility infrastructure and utility services are defined in Schedule 6 of the Act, as follows:

"utility infrastructure" means--

(a) cables, wires, pipes, sewers, drains, ducts, plant and equipment

by which lots or common property are supplied with utility

services; and

(b) a device for measuring the reticulation or supply of a utility

service.

"utility service" means--

(a) water reticulation or supply; or

(b) gas reticulation or supply; or

(c) electricity supply; or

(d) air conditioning; or

(e) a telephone service; or

(f) a computer data or television service; or

(g) a sewer system; or

(h) drainage; or

(i) a system for the removal or disposal of garbage or waste; or

(j) another system or service designed to improve the amenity, or

enhance the enjoyment, of lots or common property.

The plumber engaged by the body corporate stated in a letter dated 6 June 2001:

"The water leak from the shower combination (in lot 10) is backed onto the common duct for the waste pipe system above. This section of wall is body corporate responsibility."

Although the shower combination provided a service only to lot 10, it does not fall within the exception to section 20(1), above, because it is located within a boundary structure for the lot. Accordingly, the body corporate was responsible for the cost of replacement of the shower combination.