Maraka [2003] QBCCMCmr 68 (15 August 2003)

Number of Scheme:	13701
Name of Scheme:	Maraka
Address of Scheme:	38 Gray Avenue CORINDA QLD 4075

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Roberta Feltbrodt, a former Owner of Lot 7

I hereby order that the application for an order requiring the Body Corporate to reimburse the Applicant the amounts of $1495.00 for repairs to the ceiling of Lot 7, and $1050 for loss of rent, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0065-2003

"Maraka" CTS 13701

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

(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)).

This dispute resolution application was made on 28 January 2003. On 10 February 2003, a staff member of this Office wrote to the Applicant on behalf of the Commissioner for Body Corporate and Community Management ("the Commissioner") and requested clarification of certain details of the application. The Applicant provided the requested information in a letter dated 12 February 2003.

On 21 February 2003, the Commissioner invited the Body Corporate Committee, and all owners of a lot included in the scheme, to make written submissions about the application. The Body Corporate Chairperson (and Owner of Lot 5) has made submissions about the application under cover of a letter dated 10 March 2003.

On 2 April 2003, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication. The Commissioner has referred the application to me for determination.

The "Maraka" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 13 August 1974. The scheme consists of 8 lots (two-storey, residential dwellings) and common property.

The community management statement for "Maraka" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

This dispute resolution application concerns the collapse of part of a ceiling into the main bedroom of Lot 7.

From the material, I understand that on 21 October 2002, the Applicant contacted the Body Corporate Manager for the scheme and advised that part of the ceiling within the main bedroom of Lot 7 was bowing. While the ceiling was inspected by a number of contractors, no rectification or remedial work was carried out prior to the collapse of part of the ceiling on 12 December 2002. The Applicant engaged Clarinval Carpentry Pty Ltd to carry out repair work to the ceiling between 23 December 2002 and 27 December 2002, at a cost of $1,495.00.

In making this application, the Applicant has sought reimbursement of the cost of repairs to the ceiling from the Body Corporate ($1495.00). The Applicant also claims that the collapse of the ceiling forced the then tenants to vacate Lot 7. As a result the Applicant is claiming a further $1,050 from the Body Corporate for loss of rent (6 weeks multiplied by $170 per week).

It is apparent from the Body Corporate Chairperson’s submission that the Body Corporate opposes the application, and considers that the costs of repairing the ceiling, and any ancillary costs are the responsibility of the Applicant.

In general terms, owners of lots included in a community titles scheme have an obligation to maintain their lots in a good condition (section 120(2) of the Standard Module). Bodies corporate for community titles schemes have a duty to maintain the common property for the scheme in a good condition (section 109(1) of the Standard Module). Section 109(2) of the Standard Module applies to community titles schemes created under building format plans (or building units plans) of subdivision, and imposes a number of additional maintenance responsibilities on bodies corporate.

Common property for a community titles scheme is primarily determined by reference to the plan of subdivision applying to the scheme (although in accordance with section 21 of the Act, common property can in some circumstances include a range of utility infrastructure (such as pipes, drains, cables and wiring) physically located within the boundaries of individual lots).

As mentioned above, the "Maraka" community titles scheme was originally created pursuant to what is now known as a building format plan of subdivision. In accordance with section 48C of the Land Title Act 1994 ("the LTA"), a building format plan of subdivision defines land using structural elements of a building, such as floors, walls and ceilings.

Generally, for schemes created under building format plans of subdivisions and building units plans of subdivision, where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary of the lot is the centre of the floor, wall or ceiling (see section 49C(4) of the LTA).

From the material, I understand that the gyprock ceiling in question is attached to a number of horizontal beams located in the ceiling cavity. According to The New Shorter Oxford English Dictionary, the meaning of the term "ceiling" includes "the undercovering of the roof or a room, concealing timbers etc". Applying this definition, the ceiling of Lot 4 is the gyprock covering, and therefore it is arguable that the boundary between Lot 4 and the common property above would be the midpoint of the gyprock. However, I do not consider that this was the intention of the legislation.

As mentioned above, section 48C of the LTA refers to "structural elements" of a building as a means of identifying subdivision boundaries. In my view, superficial coverings such as gyprock ceilings are not properly described as structural elements of a building. Therefore, I consider that the reference to "ceilings" in the legislation is intended to refer to the structure of the ceiling, which includes supporting structures such as trusses and beams, and is not simply a reference to the covering material.

For these reasons, in my view the gyprock ceiling is within the boundaries of Lot 7, and as a result, falls within the owner’s general maintenance responsibilities. However, if the damage and collapse of the ceiling of Lot 7 was caused by a failure in the common property, it is arguable that the Body Corporate should be responsible for both remedying the fault or defect in the common property that caused the damage, and for rectifying any consequential damage to individual lots.

There is some dispute between the Applicant and the Body Corporate concerning the cause of the bowing and collapse of the section of ceiling. In this respect, the Applicant has provided a letter from Mr P Clarinval of Clarinval Carpentry Pty Ltd dated 27 December 2002. The Body Corporate Chairperson has provided a letter from Britnell’s Plumbing Service Pty Ltd (dated 24 October 2002 and titled Report on Ceiling) and a quotation from J&D Contracting for internal repairs to the ceiling of Lot 7 (dated 11 December 2002). In an endeavour to clarify the information provided, I contacted each of the three contractors by telephone (on 5 August 2003 and 6 August 2003).

I do wish to note that Mr Brintnell of Britnell’s Plumbing Service made it clear to me that his company had been invited to investigate the ceiling for water penetration, and that their comments regarding the attachment of the ceiling and trusses were simply intended to alert the Body Corporate to an issue about which it could consider obtaining a builder or engineer’s advice.

From the reports and my telephone conversations with the three contractors, it appears to be agreed that the gyprock ceiling was not properly secured to the trusses. Specifically, it appears that the gyprock ceiling was nailed to the trusses, whereas to be effective, the gyprock needs to be securely glued to the supporting trusses. None of the contractors indicated to me that the trusses and supporting structures were defective or structurally unsound.

There is some disagreement as to whether or not there were water penetrations issues that could have contributed to the bowing and collapse of the ceiling. Mr Clarinval was of the view that there were water stains on the ceiling indicating that water had entered the ceiling cavity. However, the other two contractors were both firmly of the view that there was no evidence of water penetration.

In the circumstances, there is little practical way for me to resolve the differences of opinion on the question of whether there is water penetration. In addition, even if I accept that there was some water penetration, it is even more difficult for me to objectively establish the seriousness of the water penetration, and the extent to which water contributed to the collapse of the ceiling.

However, it seems to me that it has been established that a primary cause of the collapse of the ceiling was the manner in which the gyprock ceiling was attached to the supporting trusses and beams. I consider that this is within the boundaries of the lot, and is a matter for the Owner of the lot to address. The Applicant has not satisfied me with sufficient certainty that water penetration, or any other matter that is the responsibility of the Body Corporate, contributed in a significant way to the collapse of the ceiling.

In the circumstances, I consider that the cost of repairing the ceiling should be borne by the Applicant, and as a result, I have dismissed this part of the application. As I have found that the repairs in question are the responsibility of the Applicant, it follows that the Body Corporate should not be responsible for any claim for loss of rent. As a result, I do not intend to consider this part of the application further.

^[1] While the Applicant was the registered owner of Lot 7 at the time of making the application, the Applicant has since sold and transferred her interest in Lot 7.

•	of repairing the ceiling which was: $1495.00
•	Recompense for the rent-6 weeks @ 175.00 p/wk."

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Maraka [2003] QBCCMCmr 68 (15 August 2003)