Makira [2004] QBCCMCmr 188 (6 April 2004)

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

I hereby order that within 8 weeks of the date of this order, the Owners of Lot 9 shall engage an appropriately qualified and experienced tradesperson to carry out repairs to the shower recess and shower tray located in the ensuite bathroom of Lot 9 to ensure that water from the shower does not leak into Lot 6 below.

I further order that the repairs required by this order shall be carried out in a proper, workmanlike manner.

I further order that until such time as the repairs required by this order are carried out, the Occupiers of Lot 9 shall refrain from using the ensuite shower.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0167-2004

"Makira" CTS 7721

On 18 March 2004, the Applicant (a Co-owner of Lot 6) filed a dispute resolution application with the Commissioner for Body Corporate and Community Management ("the Commissioner") under the Body Corporate and Community Management Act 1997 ("the Act").

The Applicant states that he is seeking the following outcome:

The Applicant is also seeking the following two interim orders in relation to the application:

Department of Natural Resources, Mines and Energy records show that the "Makira" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan), registered on 18 September 1986. The scheme currently consists of 11 lots and common property.

A standard community management statement was recorded for "Makira" on 15 July 2000. The community management statement indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

As mentioned above, this application was filed on 18 March 2004. On 23 March 2004, and in accordance with section 243(1) of the Act, the Commissioner provided formal notice of the application to the Body Corporate, the Owners of Lot 9, and the Occupier of Lot 9. The Commissioner also invited the Owners of Lot 9, the Occupier of Lot 9, and the Body Corporate Committee to make written submissions about the application (section 243(2)(b) of the Act). I have before me submissions from the Committee, the Owners of Lot 9, and the Occupier of Lot 9.

On 31 March 2004, the Commissioner referred the application to me for consideration for an interim order (section 247(2) of the Act).

Also on 31 March 2004, a staff member of this Office contacted one of the Co-owners of Lot 9 on my behalf, to request particular further information about the issues raised in the application.
Firstly, the staff member confirmed with the Co-owner of Lot 9 that there were two showers in Lot 9, and that to his knowledge, the shower in the main bathroom was in good working order. Secondly, the staff member requested that the Owners of Lot 9 provide a copy of the plumber’s report concerning the ensuite shower mentioned in their submission. The Owners of Lot 9 have provided a copy of a report, dated 21 February 2004 and detailed on a tax invoice, prepared by Mr Chris Wilczek of Denno Plumbing.

Section 276(1) of the Act broadly authorises adjudicators to issue just and equitable orders to resolve disputes in community titles schemes, about-

(a) claimed or anticipated contraventions of the Act or a scheme’s community management statement; and

(b) the exercise of rights or powers, or the performance of duties, under the Act or a scheme’s community management statement; and

(i) the engagement of a person as a body corporate manager or service contractor for a scheme; and

(ii) the authorisation of a person as a letting agent for a 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)).

Broadly speaking, this application concerns repair and maintenance responsibilities under the Act. As a result, it seems to me that the matter falls within the jurisdiction of an adjudicator.

Section 279(1) of the Act allows adjudicators to issue interim orders in relation to dispute resolution applications "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates".

In considering any application seeking an interim order, it is necessary to determine whether an interim order is necessary or appropriate on the basis of the nature or urgency of the circumstances of the application. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made where the only purported urgency is the applicant’s desire to expedite resolution of the dispute, or where the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances.

In this instance, the Applicant claims that the Owners of Lot 9 have failed to undertake required repairs to the ensuite shower of Lot 9, resulting in continuing water penetration and damage to the Applicant’s Lot 6. The Applicant has sought interim orders to mitigate the alleged continuing water penetration and damage. In the circumstances, I am satisfied that the subject matter of this application is suitable for consideration for interim orders.

This application primarily concerns two lots in the "Makira" community titles scheme; the Applicant’s Lot 6, and Lot 9. The building units plan for "Makira" shows that Lot 6 is located directly below Lot 9.

From the supporting material to the application, I understand that the Applicant has recently renovated Lot 6. I also understand that in the course of this renovation, the Applicant became aware that water was leaking from the ensuite shower of Lot 9 and entering the ceiling cavity of Lot 6 (above the ensuite of Lot 6). The Applicant is concerned that if allowed to continue, this water leakage will cause significant damage to the ceiling and fittings of Lot 6.

According to the application, the Applicant first reported the issue to the Owners of Lot 9 in October 2003. While the Owners of Lot 9 requested their tenant to refrain from using the shower, I understand that it was not until December 2003 (following further approaches from the Applicant) that the Owners of Lot 9 agreed to engage a plumber to have the ensuite shower tray repaired.

After taking up residence of Lot 6 in February 2004, the Applicant observed water dripping from the inspection hatch, located in the ceiling of his Lot 6. On 18 February 2004, Denno Plumbers were engaged to inspect the shower tray. While some temporary rectification work was carried out, the plumber indicated that further significant work would be required to permanently remedy the problem.

In their submission, the Owners of Lot 9 appear to accept that there is a problem with the ensuite shower tray, causing water to enter Lot 6. However, they also express the view that it would be preferable for the repairs to be carried out in conjunction with a fuller renovation of the ensuite. I understand that the Owners of Lot 9 are currently in the process of selling Lot 9.

While the Owners of Lot 9 have requested their tenant to refrain from using the ensuite shower, there do not appear to be any definite plans to carry out further repairs to the ensuite shower in the near future. Further, the Owners of Lot 9 do not express any definite intention to renovate the bathroom, and suggest that it may be a project undertaken by them, or perhaps the new owners of Lot 9, depending on whether Lot 9 is sold in the near future.

In its submission supporting the application, the Body Corporate explains that a number of units at "Makira" have experienced failures in shower trays, which the Body Corporate suggests is at least partly caused by the age of the building (approximately 17 years). The Body Corporate also states that other owners have carried out rectification work to their shower recesses to remedy the problem.

The Act and the Standard Module make provision for maintenance responsibilities in community titles schemes. In general terms, lot owners have a responsibility to maintain their lots in a good condition (section 120(2) of the Standard Module), and bodies corporate have a responsibility to maintain the common property for the scheme in a good condition (section 109(1) of the Standard Module). In terms of shower trays, section 109(3)(c) of the Standard Module goes on to specifically provide that lot owners are responsible for maintaining "the tray of a shower that services the lot, whether or not the tray forms part of the lot."

In this instance, it appears that the ensuite shower (including the shower tray) of Lot 9 requires repairs. The parties appear to accept that the Owners of Lot 9 are responsible for the required repairs. The disagreement appears to be simply about the timing of the repairs.

In my view, the Owners of Lot 9 have a responsibility to meet their statutory maintenance obligations within a reasonably prompt period of time, particularly in circumstances where a failure to meet these obligations adversely impacts on other lot owners and occupiers. In this case, the Owner of Lot 6, and the Occupiers of Lot 9 are both adversely affected by the failure of the Owners of Lot 9 to carry out repairs to the ensuite shower. I do not consider that it is appropriate for the repairs to be delayed pending a sale of the lot, or a proposed renovation that may or may not eventuate.

At this time, I am primarily concerned with determining the application for interim orders. However, in the circumstances, and particularly in the absence of a dispute about responsibility for the repairs, I am satisfied that it is appropriate for me to finally determine this application.

I have decided to order the Owners of Lot 9 to engage a suitably qualified and experienced person to carry out the required repairs to the ensuite shower (including the shower tray) of Lot 9 within 8 weeks of the date of this order. In the meantime, and to mitigate any potential damage to Lot 6, I have also formalised the Occupier of Lot 9’s agreement to refrain from using the ensuite shower of Lot 9 until the repairs are carried out.

The Applicant has also requested an interim order requiring the Owners of Lot 9 to disclose the details of the problems with the ensuite shower to any potential purchasers. I am not satisfied that it is appropriate for me to issue orders regarding disclosures to be made in the course of a sale of a lot. However, I do note that in their submission, the Owners of Lot 9 have agreed to disclose the information about the ensuite shower to potential purchasers. It is also important to note that this order will form part of a public record available to be searched by potential purchasers. The order will also form part of the Body Corporate’s records, which are available for inspection by potential purchasers.

Finally, I note that it may be necessary for the Applicant to allow tradespeople access to Lot 6 in order to carry out the repairs required by this order. I trust that the Applicant will allow reasonable access to Lot 6 for this purpose if necessary. However, if the authorised tradesperson is required to remove any part of the ceiling of Lot 6 to carry out the repairs required by this order, it follows that the ceiling should be reinstated to its previous condition, at the cost of the Owners of Lot 9.

Number of Scheme:	7721
Name of Scheme:	Makira
Address of Scheme:	98 Whitmore Street TARINGA QLD 4068

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Makira [2004] QBCCMCmr 188 (6 April 2004)