Pallisar Court [2004] QBCCMCmr 450 (22 September 2004)

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

I hereby order that the cost of any repair or remedial work to be carried out on the balcony enclosures of lots 2 and 5 to prevent water penetration into lot 2 shall be borne by the owners of lots 2 and 5 in the shares determined by a suitably qualified tradesperson based upon the cost of labour and materials applicable to each lot.

I further order that the body corporate shall within 1 month of the date of this order arrange for a suitably qualified tradesperson to inspect the steel angle installed at the end of the concrete patio slab above lot 2 to determine if it is in an acceptable condition.

I further order that if the tradesperson certifies that the steel angle is in an acceptable condition, then within 14 days of the date of that certification the body corporate shall arrange for the steel angle to be cleaned and repainted.

I further order that if the tradesperson certifies that the steel angle is not in an acceptable condition then within 14 days of that certification the body corporate, at its expense, shall arrange for appropriate remedial/replacement work to be undertaken, and shall, if necessary, raise a special levy under section 56(2)(a) of the Body Corporate and Community Management (Small Schemes Module) Regulations 1997 to cover that expense.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0773-2003

"Pallisar Court" CTS 13383

The applicant, Larissa Anne Cordner, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the body corporate covers the quoted fees of fixing the external closed in balcony of units 2 and 5.

That the body corporate accepts responsibility of the degradation of the concrete slab between units 2 and 5 from external water damage.

That if the body corporate is not found to be responsible, that an agreement is made.

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)).

In her supporting grounds the applicant stated that in June 2003 T A Taylor Pty Ltd (Taylor) was requested to give advice on the necessary steps to rectify water damage to her lot. The applicant explained that during rain, her window sills fill with water from the inside and drip onto the floor. The applicant believed that the water was being funneled from the middle of the enclosed balcony of the lot immediately above her own. The applicant provided a copy of the Taylor report dated 12 June 2003, which had been forwarded to her by the body corporate manager under cover of a letter dated 17 June 2003. The body corporate manager advised the applicant "(a)s the balconies were enclosed by individual unit owners this would be an owner’s expense and not a body corporate responsibility. Balcony flooring is also considered an owner’s responsibility. Therefore if the involved owners wish to proceed you may do so at a cost to the owners."

The Taylor report noted, amongst other things, that the balcony enclosure (glazing) was installed after construction and was poorly installed, with the glazing on both lots being out of plumb. The report further noted that flashings at the top of the enclosure for lot 2 were non-existent, and that the steel column on lot 5’s balcony was rusted through at the base and might require replacement.

I convened a teleconference between the body corporate manager, Mr Trevor Matthews, and the applicant on 9 December 2003. Mr Matthews advised me that he had been the body corporate manager for this scheme for approximately 15 years and was not aware of any formal approval having been given during that time for the enclosure of the balconies of lots 2 and 5. Mr Matthews further advised that he would check the body corporate records prior to his appointment to see if there was any record of approval, but he believed that if any approval had been given it was probably given on an informal basis.

I convened a further teleconference between the applicant, and the owner of lot 5, Marnie Ballinger (the respondent), on 10 December 2003. The respondent confirmed that she had read the Taylor report as it had been sent to her by the body corporate manager. I explained to both parties that any improvement made to a lot by the owner of the lot for the benefit of the lot would require to be maintained by the owner of the lot for the time being, no matter when the improvement was made. Both parties agreed that they would have further discussions between themselves about the matter, and would also probably obtain another report to assist them in making a decision about future action.

On 15 December 2003, the respondent was formally invited to lodge a submission, in response to the application. That submission was ultimately received in the Commissioner’s office on 21 May 2004.

On 24 June 2004 the body corporate manager confirmed in a telephone conversation with a member of the Commissioner’s staff that he had been unable to locate any record of body corporate approval for the balcony enclosures of lots 2 and 5.

On 2 August 2004, the applicant forwarded a further report dated 6 July 2004 from Queensland Building Inspectors (QBI). That report contained an assessment of the enclosed balcony in the applicant’s lot, and proposed two methods of resolving the problem of water penetration into the lot. In addition, however, the report noted the following:

"A steel angle is installed at the end of the patio above this unit (the applicant’s lot) to support the concrete. This steel angle is approximately 180mm deep and rusting.

Before any work is carried out, the rusting steel angle should be thoroughly checked and if in acceptable condition, cleaned and painted."

On 16 September 2004 I conducted a further teleconference between the applicant and the respondent. They both confirmed that they had been present during the inspection conducted by Des Salmon of QBI. I explained to the parties that although the water penetration problems arising from the non-existent flashing, as identified by the Taylor report, and confirmed by the QBI report, did not fall within the responsibility of the body corporate, it seemed that the steel angle installed at the end of the slab above the applicant’s lot might fall within body corporate responsibility. I explained that I would need to obtain further detail from Mr Salmon, and both parties agreed that I should contact him for that information.

After the teleconference, I telephoned Mr Salmon, who advised me that the steel angle to which he referred in his report would have been put in place as part of the original construction of the slab. Mr Salmon confirmed his opinion expressed in the report that the rusting steel angle should be thoroughly checked before any remedial work is undertaken to install aluminium flashing in lots 2 and 5. Mr Salmon stated that if the steel angle is found to be in an acceptable condition it would only need to be cleaned and painted. Otherwise, steps would need to be taken to have it removed and replaced. In Mr Salmon’s view the opinion of a structural engineer should be obtained, particularly if the steel angle is in fact supporting the concrete slab, as his report suggested. Mr Salmon pointed out that a proper inspection of the steel angle would only be able to be undertaken if scaffolding were erected.

This scheme comprises 6 lots registered in a building units plan (now described as a building format plan). It is regulated by the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (Small Schemes Module).

Section 70 of the Small Schemes Module provides:

1. An airconditioning plant is installed on the common property, but relates only to

2. A hot-water system is installed on the common property, but supplies water only to

a particular lot. The owner of the lot would be responsible for maintaining the

(adjudicator’s emphasis)

Section 81(2) of the Small Schemes Module provides that the owner of a lot included in the scheme must maintain the lot in good condition.

The balconies (or patios, as they are described on the registered plan) of lots 2 and 5 are wholly contained within the respective titles to those lots. The evidence before me does not show that the balcony enclosures encroach onto common property. In addition, it appears that the balconies were enclosed many years ago, when there was no by-law requiring the owners of lots 2 and 5 to obtain body corporate approval for the enclosures (such a by-law only having commenced upon registration of the community management statement on 26 October 1999). Accordingly, the then owners of lots 2 and 5 did not need to seek body corporate approval to enclose their balconies. However, those owners were, and the present owners are, obliged to maintain the enclosures (being part of the lot) in good condition. As a result whatever remedial work is required to prevent the water penetration into lot 2 must be paid for by the owners of lots 2 and 5 in the proportion determined by a suitably qualified tradesperson based upon the materials and labour necessary for each lot. I have ordered accordingly.

However, the steel angle in the concrete slab (which slab is essential supporting framework) between lots 2 and 5 referred to in the QBI report falls within the parameters of body corporate responsibility under section 70(2)(b)(iii) of the Small Schemes Module as quoted above. I have therefore ordered that the body corporate must at its expense and within 1 month of the date of my order arrange for a suitably qualified tradesperson to inspect the steel angle to determine if it is in an acceptable condition to simply be cleaned and repainted, or whether it requires more extensive remedial work to be carried out. If so, then I have further ordered that the body corporate shall arrange for that remedial work to be carried out, at the expense of the body corporate, and, if necessary, the body corporate shall raise a special levy under section 56(2)(a) of the Small Schemes Module to cover that expense.

Number of Scheme:	13383
Name of Scheme:	Pallisar Court
Address of Scheme:	64 Real Street ANNERLEY QLD 4103

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Pallisar Court [2004] QBCCMCmr 450 (22 September 2004)