8 Shannon Place [2004] QBCCMCmr 16 (9 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0394-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3118
Name of Scheme:	8 Shannon Place
Address of Scheme:	8 Shannon Place VIRGINIA QLD 4014

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Innogen Pty Ltd, the occupier of lot 8

I hereby order that the body corporate of 8 Shannon Place shall, within one month of the date of this order, undertake and complete necessary remedial work to the stormwater drainage system servicing the scheme in accordance with the findings of the Hunter Plumbing Services report. I further order that the body corporate shall pay to the occupier of lot 8, Innogen Pty Ltd, the amount of $142 being reimbursement of costs incurred by it in consequence of the flooding. I further order that, within a month of the date of this order, the body corporate shall check all common property lighting, and if necessary replace those bulbs which are not operating.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0394-2003

"8 Shannon Place" CTS 3118

The applicant, Innogen Pty Ltd, the occupier of lot 8, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

That the body corporate ... perform urgent rectification of storm water plumbing to prevent further instances of flooding in the applicant’s lot.
That the body corporate ... administer the body corporate assets and common property for the benefit of owners as per Section 87(1) in specific:
Make repairs to car park lighting;
Carry out motion 17 of AGM 18 April 2002 as passed and cut back trees on the front boundary to a level of six feet.
The applicant is seeking an order for costs from the affected party (Body Corporate) for rectification to water damaged carpet and internal walls (Quotation will be supplied when available) as per section 227 of the Act, as the applicant believes the affected party has breached the Act in its failure to maintain and rectify common property utilities of storm water drainage to prevent flooding of unit 8. ...

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 scheme

The scheme is recorded as a building format plan containing 9 lots. It is noted that the applicant is the occupier of lot 8 and not the owner of that lot.

The application

In its grounds, the applicant states that on two occasions (December 2002 and June 2003) the stormwater drainage system located at the scheme has failed to operate as intended such that water has overflowed the drain and flooded unit 8. On both occasions, the body corporate was notified. On the first occasion, the applicant states that "no action was taken to clear the drain, have it inspected or in fact any action to prevent this occurring again".

The applicant alleges that the flooding caused damage to unit 8 on both occasions. Certain costs of rectifying the damage were advised -

December 2002 rental of carpet cleaning machine 51.00
June 2003 Elite Carpet Cleaners 91.00

There is further reference to the need to replace both the underlay and the water stained carpet, however no indication of this cost of this, or evidence that it was in fact undertaken, is provided.

Responses to the application

This office invited written submissions from the body corporate, the owners of lot 8, and all owners. The response received by way of submissions was pathetic. I consider it an unreasonable expectation of parties that adjudicators will be able to determine and resolve dispute applications with either no information or very limited information concerning the application to go on. In the circumstances, I intend to resolve this application on the basis of the very limited information available to me. I do not consider that I should undertake further investigations at public expense to obtain basic information from parties who could not be bothered to provide such information when invited to do so in writing.

The one submission from an owner was from a Mr Perry, the owner of lot 3. Mr Perry believes that the flooding was caused by rubbish blocking the tops of the drains both at the rear of the building and in the car park area. He states that –

This is surely the responsibility of the tenant to keep these areas clean and leaf and rubbish free. I have checked these areas a number of times and found the drains blocked by debris.

I disagree with Mr Perry’s statement. The rear of the building and car parking areas would normally be common property. Similarly, drains are utility infrastructure. It is the responsibility of the body corporate and not individual owners or occupiers to maintain both common property and utility infrastructure.

The only other material received were copies of certain faxes sent by the body corporate manager. One of June 2003 appears to authorise a "$2000 limit to high pressure machine clear the drain and carry out a camera survey to determine what is causing the problems in the drains". Another fax is correspondence from a John Wilby of Diamond C Services, the occupiers of unit 7, confirming "serious flooding at the rear of unit 7/8 Shannon Place" in June 2003. Finally, there is a late document received from the body corporate manager addressed to the body corporate manager from Hunter Plumbing Services. The document is dated 15 December 2003 and appears to be a report on the cause of the flooding. The correspondence states in part –

As noted in our invoice, works have been completed by us to clear blockage in inspection chambers / pipe. Further to this a video shot was taken with the video showing severe sagging in pipe. This would be through incorrect compaction / backfill / installation.

There are major root intrusions at approximately 25 mtr. This point has been marked on concrete pad. The intrusion is due to incorrect connection styles of piping material. There is a further problem in between south western field gully put and inspection chamber in Arnotts property, being incorrect installation of change of direction pipework that has been roughly broken to form required directional change and concrete blocked over. It is my opinion that the problem with backup of storm water is due to incorrect installation of stormwater lines. ... there is a massive flow restriction due to sagging pipe and root penetration. ...

Determination

Clearly, from the Hunter Plumbing Services report, the cause of the storm water backup and consequent flooding of the applicant’s and other lots, is more serious than that suggested by Mr Perry. Clearly, significant remedial work to the stormwater drainage system needs to be undertaken by the body corporate. I consider that these is no basis on which the body corporate could claim not to be responsible for this work, and given the current storm season with the likelihood of significant rain, I propose to order that the body corporate will undertaken and complete necessary remedial work to the stormwater drainage system within one month of the date of this order. In the meantime however, should damage be caused or occasioned to lots in consequence of stormwater backup, then the body corporate will be responsible for this damage on the basis of section 281 (formerly section 227).

This brings me to the claim for damage already occasioned. Section 281 of the Act 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.

It is clear that the body corporate is responsible to maintain the stormwater drainage system, and has failed to do so. It is further clear that the applicant has suffered damage in consequence of this failure. The applicant is claiming costs of $142. Other claimed costs or expenses have not been substantiated. In the circumstances, I intend to order that the body corporate shall pay to the applicant the amount of $142 for reimbursement of costs incurred by it in consequence of the flooding.

The application also seeks to additional order regarding lighting of common property and the implementation of motion 17. In respect of lighting, the application states that –

Light fixtures in the common car parks do not have bulbs in them that function. This has always been the case, and clearly notifies the application that the maintenance of common property areas will not in any instance be carried out to the benefit of all ...

Mr Perry states that –

Car park lights have been had new bulbs fitted by the new tenant in unit 3 at his own cost of approximately $10. It should again be the responsibility of tenants to keep an eye on the lights in front of their units as most factory owners are not there to check if lights are working.

Again, I disagree with Mr Perry. It is not the role of tenants to ensure that common property lighting is maintained and operational. Rather it is the role of the body corporate. Given this, the body corporate should undertake routine inspections to ensure necessary maintenance to all part of the common property. In the circumstances, I intend to order that within a month of the date of this order, the body corporate shall check all common property lighting, and if necessary replace those bulbs which are not operating.

The final order sought is to implement motion 17 carried at the AGM held on 18 April 2002. That resolution, carried by three yes votes, provided that the trees on the front boundary be cut back to 6’ high. The applicant states that –

To date the trees on the boundary have not been cut back to six feet high. These trees obscure any persons vision from the road and are a hindrance to the security of lot 8.

In his response, Mr Perry states that "all problem paperbark trees have recently been cut down completely and poisoned so there should be no further problem with roots in drains".

I do not know whether the trees cut down are in fact the trees to which the applicant referred. If so, then the problem has been rectified. If not, then whilst the order sought is on its face reasonable, I have concerns that it is beyond the power of an occupier to seek an order enforcing a resolution of the body corporate in general meeting. Rather, I consider that it is for owners to seek the implementation of resolutions, and it is for the occupier to refer any issue to the owner. In the circumstances, I decline to make this order as sought.