York North [2003] QBCCMCmr 578 (17 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0765-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9176
Name of Scheme:	York North
Address of Scheme:	29 Ahern Street LABRADOR QLD 4216

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

Naida Evelyn Evans, the owner of lot 12



I hereby order that the body corporate of York North shall, within two (2) weeks of the date of this order, pay to the owner of lot 12, Naida Evelyn Evans the amount of $1345.00 being reimbursement for damages caused to her lot in consequence of water damage through the roof for which the body corporate was responsible.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0765-2002

"York North" CTS 9176

The applicant, Naida Evelyn Evans, the owner of lot 12 has sought an order of an adjudicator under the provisions of the Body Corporate and Community Management Act 1997 (the Act), quote –

Pay money to me to

1. Replace floor covering in dining room and lounge room. Re water damage $2540.00;

2. Replace or pay for 2 wooden book cases valued at $150 ea. Water damage.

Floor $2540 + Book Cases $300 = 2840

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 the 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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The applicant seeks the cost of replacing carpet in her lot and the cost of replacing two book cases. It is alleged that these items require replacement due to water damage to the interior of the applicant’s lot caused by an alleged failure by the body corporate to properly maintain the common property, in particular, by allowing trees to overgrow the roof and to deposit large quantities of leaves in common property gutters causing water to escape the gutters / roof and to enter the applicant’s lot. The applicant states –

The ceiling and walls on northerly aspect were significantly damaged and now repaired under building insurance. The floor is not covered by that insurance and body corporate members believe it is my fault the water got in.

There are two issues to be determined in this application. The first is whether the body corporate might be liable for damage suffered by the applicant. If so, then the question becomes whether the body corporate should in fact be liable, and if so, the extent of that liability.

I conclude that there is a clear basis on which the body corporate might be liable. This is section 281 of the Act which provides –

281 Order to repair damage or reimburse amount paid for carrying out repairs
(1) If the adjudicator is satisfied that the applicant 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 the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.
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 an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.
(2) The order can not 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 fixed by the adjudicator would be more than $10 000.

I consider that the example in the section is specifically on point with the circumstances of this application. The applicant has suffered damage to carpets and is alleging that the damage was caused by a failure of the body corporate to properly maintain or keep in working order common property for which it is responsible. In the circumstances, I consider there is clear evidence to suggest that through some failure on the part of the body corporate to properly maintain the roof. In particular, there is reference to water damage to the ceiling and walls of the lot which were repaired by the body corporate under its insurance policy. It is not clear the exact cause or reason of the damage to the roof. It may have been as the applicant suggests, namely water damage from water retention caused by blocked gutters. Alternatively, in a teleconference conducted with the applicant and the body corporate manager, it was also indicated that 2 tiles on the roof over lot 12 had been fixed by Sure Fix Roofing on 11 April 2002. In any event, I conclude there is evidence to show a failure of the body corporate to properly maintain the roof or guttering or both such that water was able to enter the applicant’s lot causing damage, in breach of the body coprorate’s duty to maintain the common property under section 109 of the standard module.

The second issue of the extent of the body corporate’s responsibility. The applicant has claimed the amount of $2840 being the cost of replacing the carpet with tiles, and the cost of the two bookcases. The applicant provided to quotes for replacement of the floor covering. The first, with tiles, for $2540 and the second, with carpet, for $2390.

In the body corporate submission, it is stated –

The committee feel that, as pointed out to Ms Evans by the chairman, had she been in residence, the extent of damage would most likely have been reduced.

The applicant sought to argue that there was no requirement for her to be in permanent occupation of her lot. I confirmed in the teleconference that this was the case. However, I did indicate that whilst it did not affect the fact that the body corporate was responsible to maintain the roof, and that its failure to do so could render it liable in damages, it did have implications for the quantum of liability.

In the teleconference, it became clear that the applicant’s unit was not checked or visited from approximately October, 2001 until 11 April 2002, when the damage was discovered by the applicant’s sister. By this time the carpets were beyond repair. However, in an application I dealt with only last week, were a very similar scenario of water damage to carpets occurred, and the damage was discovered within hours of its occurrence, the carpet in that instance could be dried, and when laid over new underlay, could be reused. The point I am making is that had the damage been discovered proximate to the time it occurred, the extent of the damage might have been considerably less. In particular, the carpet might have been able to be dried, and not needed complete replacement. I consider the need for replacement arose from the fact that the carpet sat, saturated, for an extended period of time. I conclude that the applicant must bear some responsibility for this aspect.

As I outlined in the teleconference, I intend to discount the amount claimed by the applicant for replacement of carpet and book cases by 50%. The total amount claimed was $2690, and therefore the amount I intend to order the body corporate to pay to the applicant is $1345.

I intend to order that the body corporate shall, within two (2) weeks of the date of this order, pay to the applicant the amount of $1345.00 being reimbursement for damages caused to her lot in consequence of water damage through the roof for which the body corporate was responsible.