Capitola [2004] QBCCMCmr 389 (12 August 2004)

Last Updated: 30 September 2005

REFERENCE: 0039-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11799
Name of Scheme:	Capitola
Address of Scheme:	40 Oceanic Drive MERMAID WATERS QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Debra L BRYAN, as the occupier of Lot 2,

I hereby order that the body corporate must – • as soon as reasonably possible engage a suitable tradesperson at its own expense to seal around the waste pipe carrying water waste from Lot 5 where it passes through the floor slab, and the occupiers of both Lots 2 and 5 must allow reasonable access to the tradesperson to carry out this work; and • within four (4) months of the date of this order engage a tradesperson to repair the rotted wood on the garage cladding to Lot 2 garage to the condition it would otherwise have been had the water damage not occurred.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0039-2004

"Capitola" CTS 11799

The applicant, Debra Bryan of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"Person responsible for repairs & upkeep fulfil their obligations in rectifying all stated faults effecting Unit 2."

The applicant’s grounds refer to -

• water penetration through the upstairs balcony/verandah damaging light fittings servicing the area in front of her lot.
• water penetration from the upstairs area causing damage to the garage (wood rot).
• water penetration from the upstairs unit (Lot 5) causing water damage to bathroom ceiling and vanity unit.
• blocked drainpipes causing rainwater to overflow damaging goods stored in the garage.

JURISDICTION:
This is a dispute between an occupier (the applicant) and the body corporate (the respondent) concerning damage caused to common property and Lot 2 by water penetration through parts of the common property and the lot located directly above, Lot 5. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and therefore may be determined by an adjudicator.

General powers of an Adjudicator in making an order:
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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (committee) and to all other owners with an invitation to each to respond to the matter of dispute raised in the application. The owner of Lot 5, Christine Sturgeon, made a submission refuting the allegation that the leak came from Lot 5 and complaining of the behaviour of the applicant. The Body Corporate Manager, Ross Flower Realtors International Pty Ltd ("RFRI") made a submission, seemingly on behalf of the body corporate committee, setting out responses to each of the points raised by the applicant. Another owner, Ruth Voelker of Lot 6, made a submission though her main concerns were outside the terms of this application (being that the balcony should be "non-slippery and non-glary); though she also complained of the continual complaints apparently by the applicant. The applicant viewed all of the submission but did not lodge a reply (see sections 244 and 246 of the Act), however she did give notice on 31 May 2004 that certain work on the balcony had since been carried out by the body corporate.

Because of information from both the applicant and RFRI in their respective submissions regarding work subject of the application having been carried out since the application was lodged, on Tuesday 10 August I conducted a teleconference with Walter Bryan (the applicant’s father and owner of Lot 2) and Ross Flower (the principal of RFRI) for the respondent body corporate.

Flower confirmed that the body corporate had engaged a tradesperson who had completed the sealing of the cracks in the balcony. In regard to the rotted wood on the applicant’s garage and the drainpipe, he said that the body corporate planned to repair these as funds became available.

He also stated having determined that the leak into the applicant’s Lot 2 bathroom was indeed coming from Lot 5. A waste water pipe in the slab floor (that dividing Lot 5 from Lot 2 below) had not been sealed in and water was leaking through the gap into the bathroom area of Lot 2. He said that he was attempting to have a tradesperson seal around the pipe however it was difficult obtaining one for such a small task.

Bryan said that Lot 2 had a false ceiling to conceal infrastructure (pipes etc) and water had leaked through, damaging the ceiling and dripped onto the vanity unit damaging it by swelling the chipboard frame. Flower said that he could not see how the leak could have damaged the vanity unit which was not located anywhere near the ceiling drip point.


DETERMINATION:
"Capitola" was registered as a building units plan (now termed a building format plan) on 26 July 1979 and comprises six lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

I have viewed the registered plan for this scheme which is now some 25 years old. The balcony running the length of the building in front of the upper floor lots (4, 5 and 6) is part of the common property and therefore the duty of the body corporate to maintain to a standard of good condition under section 109(1) of the Standard Module.

The body corporate has apparently had the cracks (plainly visible in the applicant’s photographs supplied) successfully repaired. These cracks had occurred many years ago (soon after construction according to Voelker) and have evidently been only haphazardly repaired in that time. I note that the applicant and Mrs Bryan were members of the committee for some of those years and were in a position of influence to have repaired the very cracks the applicant now complains of. I also understand that the forward projection (immediate year plus 9 years) of sinking fund requirements, introduced to commence from July 1997, also was not complied with by the body corporate until recently.

In regard to the rotting wood on the garage cladding, and the blocked downpipes, these are also apparently problems of long standing not addressed by the body corporate committee – again the applicant is complaining of the consequences of neglected maintenance work that was within her duty and power as a committee member to rectify – by either successful motions proposed by the committee or by application to this office for the body corporate to be ordered to comply. For example, in her grounds the applicant says "The body corp remedy for this was to cut a hole in downpipe above ground level allowing storm water to stream out across driveway with leaves" which apparently happened during her period of stewardship.

In these circumstances, I accept the undertaking of Flower that these repairs will be carried out as funds become available. I have allowed four (4) months for the work on the garage wood to be undertaken – the work necessary is repair work only so as to restore it to the condition it would otherwise had been but for the water damage.

In regard to the leak from Lot 5 because of the waste pipe passage through the slab not being properly sealed, the responsibility for this repair lies with the body corporate under section 20(1) of the Act. This subsection provides that the body corporate is responsible for the maintenance of utility infrastructure (which includes waste pipes) located in the boundary structure of a lot. In this instance the fault lies with the opening and pipe in the slab floor which is a boundary structure of Lots 5 and 2 and is therefore caught by the section.

Accordingly, the body corporate is responsible for the cost of sealing the pipe – the owner of Lots 2 and 5 must allow access for this to be done.

In regard to the damage claimed by the applicant (ceiling and vanity unit), she must supply written evidence in the form of either a report by a plumber or other suitably qualified expert, as to whether one or both items have been damaged as a direct result of water leakage from the unsealed pipe. The report should be passed to RFRI for submission of an appropriate claim against the body corporate damage insurer.

If that claim is not successful, then the applicant (or more appropriately her father, Walter Bryan, as the owner) may carry out the repairs or consider an approach to whoever she considers responsible, or jointly responsible, for the damage and therefore the required repairs. If this is unsuccessful then the applicant might consider an application to this office for determination as to who is responsible for the repairs. I note the applicant’s comment that some (unspecified) goods stored in the garage were soaked allegedly from an overflowing, blocked drain. It does not appear that the applicant is making a claim in respect of this matter – it she were then questions of causation, whether such damage was foreseeable, and whether the applicant contributed to the damage by storing items in an location where overflow had occurred previously, would need to be addressed.

I would reiterate comments made during the teleconference that if another party accepts full or joint responsibility for the repairs, the applicant has no right to a new vanity unit in replacement for the one, now some 25 years old, damaged. Repair to a satisfactory standard of utility and paint matching as necessary, is sufficient. In regard to the ceiling, presumably plasterboard, it is usual that new replacement board is necessary.