Aarons [2004] QBCCMCmr 222 (29 April 2004)

Last Updated: 30 September 2005

REFERENCE: 0729-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11476
Name of Scheme:	Aarons
Address of Scheme:	3355 Gold Coast Highway SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act on behalf of Kathleen Young, a Co-owner of Lot 43:

I hereby order that: 1. The Body Corporate for "Aarons" shall, at the expense of the Body Corporate, arrange for repairs to be effected in a proper, workmanlike manner to the building roof, including any damaged roof tiles and water proofing membranes. 2. The Body Corporate for "Aarons" shall arrange for the work required by this order to be carried out as soon as practicable, and in accordance with the timeframes set down in this order. I further order that within 30 days of the date of this order, and for the purposes of determining the scope and cost of the work required by this order: 1. The Body Corporate Committee shall obtain from a suitably qualified person or persons, at least one report ("the report") identifying the particulars of any damage to the roof (including the causes of water penetration of the roof), as well as making recommendations for rectification of the roof; and 2. The Body Corporate Committee shall obtain at least two quotations for the work recommended in the report for rectification of the roof. I further order that: 1. Provided the cost of carrying out the work required by this order falls within the relevant limit for committee spending for the "Aarons" Body Corporate as specified by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module"), then within 10 days of receipt of the report/s and quotations, the Secretary shall call and hold a meeting of the Committee to authorise the required work. 2. If the cost of carrying out the work required by this order is above the relevant limit for committee spending as specified by the Accommodation Module, then within 21 days of receipt of the reports and quotations, the Committee shall call and hold an extraordinary general meeting of the Body Corporate to authorise the required work. I further order that within 2 days after the authorisation of the work required by this order, the Body Corporate Committee shall engage the selected tradesperson (or tradespersons) to commence the required work as soon as possible. I further order that within one week of the date of this order, the Body Corporate Secretary shall distribute a copy of this order, and the accompanying statement of reasons to each owner of a lot included in the "Aarons" community titles scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0729-2003

"Aarons" CTS 11476

1.	The application

On 6 November 2003, a representative of the Applicant 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 (a Co-owner of Lot 43) is seeking orders requiring the Body Corporate to arrange for the roof of the building to be repaired.

2.	The "Aarons" community titles scheme

Department of Natural Resources, Mines and Energy records show that the "Aarons" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 19 May 1980. The scheme currently consists of 44 lots and common property.

A new community management statement for "Aarons" was recorded on 31 May 2000. The community management statement indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module") applies to the scheme.

3.	Jurisdiction

Section 227 of the Act restricts the types of "disputes" that may be resolved under the Act’s dispute resolution provisions to those between particular parties involved in a community titles scheme. This application describes a dispute between a lot owner and a body corporate, and falls into the category of dispute described in section 227(1)(b).

Section 276(1) of the Act allows adjudicators to make just and equitable orders to resolve disputes within a 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

(c) claimed or anticipated contractual matters about the engagement of a person as a body corporate manager or service contractor for a scheme, or the authorisation of a person as a letting agent for a scheme.

In this case, the Applicant considers that the Body Corporate for "Aarons" has failed to meet its obligation to maintain the roof in a good condition, as required by the Act and the Accommodation Module. As a result, it seems to me that the matter is one that may be resolved by an adjudicator.

4.	Administration of the application

As mentioned previously, this application was filed on 6 November 2003. On 14 November 2003, the Commissioner provided the Body Corporate with formal notice of the application. In addition, the Commissioner required the Body Corporate Secretary to distribute the application and an invitation to make submissions about the application, to all owners of a lot included in the "Aarons" community titles scheme.

The Owner of Lot 39 and the Caretaking Service Contractor have made submissions about the application.

On 15 December 2003, the Commissioner made a dispute resolution recommendation that the application should be resolved by departmental adjudication. The Commissioner has referred the application to me for consideration.

5.	Matters in dispute

The building units plan for "Aarons" shows that the Applicant’s Lot 43 is located on the top two levels of the building (Levels D and E). In the supporting grounds to the application, the Applicant explains that defects in the roof of the building have resulted in water penetration to Lot 43. Of particular concern is the Applicant’s statement that the water ingress has affected electrical fittings and fixtures in Lot 43, resulting in a hazardous situation.

The Applicant has supplied a number of documents in support of her application. Firstly, the Applicant has provided a report dated 8 February 2002 as prepared by Mr Garry Leworthy of Boral Bricks & Roofing following his inspection of the roof tiles. In his report, Mr Leworthy makes the following comments:

"The roof tiles appear to be "fretting", a condition caused when salt is deposited onto the roof tiles when it rains and the salt begins to erode into the tile. This erosion causes the tile to break down and become flaky. This erosion of the tile is not always noticeable as it can take some time and normally effects the water channels or underneath the tile first"; and

"Secondly, some of the sisilation paper has been damaged and presents a problem where if water was to penetrate the roof tiles it would leak directly onto the ceilings".

Mr Leworthy goes on to state that "there is no cure for this "fretting" other than the replacement of the roof tiles".

The Applicant has also provided a subsequent report dated 4 September 2003, also prepared by Mr Leworthy. In the latter report, Mr Leworthy reiterates his comments in the previous report regarding the "fretting" of the tiles and the damage to the sisilation paper, and also makes the following comments:

"The deterioration of the water channels of the tiles and the damage to the sisilation is the reason why water is leaking into the ceiling. The water is then leaking through light fittings and down walls. The mixture of water and electricity is extremely dangerous and could result in someone getting electrocuted...The possibility of a ceiling collapsing is also probable depending on the amount of water...As this deterioration worsens, as it will, the likelihood of these scenarios happening increases."

Mr Leworthy goes on to recommend that "the only way to rectify this problem is that you consider replacement of the roof tiles and sisilation".

The Applicant has also provided a copy of an Improvement Notice issued by the Department of Industrial Relations to the Applicant on 30 October 2003. This notice indicates that electrical equipment in Lot 43 is unsafe due to "water ingress continuing to effect light fittings and power points in the unit during times of rain downpours".

The application is supported by the Owner of Lot 39. In his submission, the Owner of Lot 39 states that Lot 39 experiences similar water penetration problems to those detailed in the application. The Caretaking Service Contractor also supports the application.

The Committee did not provide a written submission to this particular application.

6.	Determination

On 28 April 2004, I conducted a teleconference with the Applicant’s representative, and the Body Corporate Manager for "Aarons". My main reasons for conducting the teleconference were to establish the Body Corporate’s position regarding the issues raised in the application, and to gather current information about the issues in dispute.

During the teleconference, the Body Corporate Manager informed me that the Body Corporate had held its annual general meeting that morning. The Body Corporate Manager explained that while a particular motion proposing that the roof be repaired had failed, the meeting did discuss the issue in some detail, and agreed that the Chairperson would obtain professional reports about the roof, as well as quotations for repairing the roof. The Body Corporate Manager indicated that the meeting agreed that the Chairperson would obtain the reports and quotations within 60 days of the meeting, following which, the Body Corporate would convene an extraordinary general meeting for the purposes of authorising the repair work. The Body Corporate Manager also explained that this process would be carried out in conjunction with addressing other maintenance and repair issues currently confronting the "Aarons" Body Corporate.

The material presented by the Applicant clearly shows that the roof requires significant repair. The material also shows that the water penetration poses a significant threat to the health and safety of any person in Lot 43, particularly due to the impact of the water penetration on electrical fixtures and fittings.

Following the teleconference, I understand that there is no dispute between the parties that:

• The roof requires significant repairs; and
• The Body Corporate for "Aarons" is responsible for arranging, and meeting the cost of the repairs to the roof.

While the Body Corporate appears to have made some initial decisions on how the issue will be addressed, the Applicant wishes to ensure that the Body Corporate does indeed arrange for the required repairs to the roof, and that the repairs are carried out as quickly as possible. To that end, I have decided to issue a number of orders in relation to this application.

Firstly, I have issued an overarching order that the Body Corporate arrange for the roof to be repaired as soon as practicable. Secondly, and for the purposes of carrying out the first order, I have formalised (with some alterations) what I understand to be the Body Corporate’s agreed approach to arranging the repairs, as discussed at the annual general meeting of 29 April 2004.

Generally speaking, I consider that the Body Corporate’s plan of action, as proposed at the 29 April 2004 meeting, is appropriate. It seems reasonable for the Body Corporate to obtain professional reports and quotations, and subsequently to hold a meeting to decide on which quotations to accept.

However, I intend to require the Body Corporate to obtain any professional reports and quotations within 30 days, rather than the 60 days specified at the meeting. I do accept that it may be difficult for the Body Corporate to obtain the information within 30 days, and to some degree the Body Corporate’s ability to obtain the information will depend on the availability of tradespeople and other professional advisors. However, my main reasons for adopting a shorter period are as follows:

• Firstly, I am satisfied that the required repairs are urgent and necessary to protect the health and safety of people in the building. I am also concerned about possible insurance implications should the Body Corporate fail to promptly resolve the issues about the roof and a serious incident occur. Given the significance of the issues, I am not convinced that it is appropriate for the Body Corporate to take 60 days to obtain information, followed by at least another 21 days to call a general meeting, prior to any work being carried out to remedy the problems with the roof;

• Secondly, I am satisfied that the Body Corporate has been aware of the serious issues affecting the roof for a considerable period of time;

• Thirdly, it is apparent that the Body Corporate has previously received professional advice about the causes of the water penetration problems, as well as recommendations for rectifying the problems (for instance, Mr Leworthy’s reports); and

• Finally, should the Body Corporate fail to take prompt and reasonable steps towards rectifying the roof, the Applicant should be entitled to take action through the Magistrate’s Court for the purposes of enforcing this order within a reasonable period of time.

I have also specified by order that following receipt of the information, the Committee must hold a meeting for the purposes of authorising the work necessary to repair the roof. Alternatively, and if the cost of the required work is above the relevant limit for committee spending, the Committee must convene an extraordinary general meeting of the Body Corporate for the purposes of authorising the work.

Finally, I have required the Body Corporate Secretary to distribute this order and statement of reasons to each of the owners of a lot included in the scheme. Owners should be aware that this order requires the Body Corporate to arrange for suitable repairs to the roof, in accordance with its statutory responsibilities. The meeting required by this order is simply for the purposes of allowing the Body Corporate to decide who to engage to carry out the work. It should not be seen by owners as an opportunity for the Body Corporate to defer or decline to incur the expense of carrying out the required repairs to the roof.