View Pacific [2004] QBCCMCmr 500 (22 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0331-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12064
Name of Scheme:	View Pacific
Address of Scheme:	5 View Avenue SURFERS PARADISE QLD 4217

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

A Hallay Nominees Pty Ltd, the owner of lot 11

I hereby order that the body corporate shall, within 1 month of the date of this order, reimburse the applicant, A Hallay Nominees Pty Ltd, in the sum of $440.00 for the work undertaken within lot 11 by Nobby’s Construction Services, detailed in quote 220 dated 7 May 2004, and paid in full by the applicant on 18 May 2004.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0331-2004

"View Pacific" CTS 12064

ORDER SOUGHT

The applicant, Hallay Nominees Pty Ltd, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

Reimburse us for the money spent to rectify the rusty and deteriorated metal flashings around the windows and walls, also we want the moisture problem in the external walls of the building fixed and waterproofed, so as to prevent further damage to my unit.

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).

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)).

BACKGROUND

The applicant’s director stated that she returned to the lot on 9 April 2004 after having been away for a couple of months, and discovered that extensive damage had been caused to carpet and other contents of the lot by moisture penetration. The applicant also provided a report dated 22 April 2004 from Westaway Restorations Pty Ltd which confirmed that the metal flashings around the windows of the lot were rusty and had deteriorated. An invoice from Nobby’s Construction Services dated 7 May 2004 included the removal of rusted metal flashings around 3 windows. The information was submitted to the body corporate committee for its consideration, and on 19 May 2004 the committee confirmed its view that the internal window ledges of a lot are the property of the owner of the lot, and the external window ledges remain the property of the body corporate, and are therefore required to be maintained by the body corporate.

All owners and the body corporate committee were invited to respond to the application. A submission was received from the body corporate manager on behalf of the body corporate committee. The submission simply enclosed a report dated 5 July 2004 from Hi Rise & Home in which it was explained that the rusting was of the internal metal ex angle to the windows.





SCHEME

View Pacific registered as a building units plan (now described as a building format plan) on 20 October 1978. It comprises 34 lots. The scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

DETERMINATION

Section 108 of the Accommodation Module provides:

108 Duties of body corporate about common property--Act, s 152

[SM, s 109]

(1) The body corporate must maintain common property in good

condition, including, to the extent that common property is structural in

nature, in a structurally sound condition.

(2) To the extent that lots included in the scheme are created under a

building format plan of subdivision, the body corporate must--

(a) maintain in good condition--

(i) railings, parapets and balustrades on (whether precisely, or

for all practical purposes) the boundary of a lot and

common property; and

(ii) doors, windows and associated fittings situated in a

boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that

provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not

common property in a structurally sound condition--

(i) foundation structures;

(ii) roofing structures providing protection;

(iii) essential supporting framework, including load-bearing

walls.

(3) Despite anything in subsections (1) and (2)--

(a) the body corporate is not responsible for maintaining fixtures or

fittings installed by the occupier of a lot if they were installed for

the occupier’s own benefit; and

(b) the owner of the lot is responsible for maintaining utility

infrastructure, including utility infrastructure situated on

common property, in good order and condition, to the extent that

the utility infrastructure--

(i) relates only to supplying utility services to a particular lot;

and

(ii) is 1 of the following types--

• hot-water systems

• washing machines

• clothes dryers

• another device providing a utility service to a lot; and

Examples for subsection (3)(b)--

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

supplying utility services to a particular lot. The owner of the lot would be

responsible for maintaining the airconditioning equipment.

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

hot-water system and the associated pipes and wiring.

(c) the owner of the lot is responsible for maintaining the tray of a

shower that services the lot, whether or not the tray forms part of

the lot.

(4) To avoid doubt, it is declared that, despite an obligation the body

corporate may have under subsection (2) to maintain a part of a lot in good

condition or in a structurally sound condition, the body corporate may

recover the prescribed costs, as a debt, from a person (whether or not the

owner of the lot) whose actions cause or contribute to damage or

deterioration of the part of the lot.

(my emphasis)

It is the responsibility of the body corporate to maintain the windows in question. They are situated in a boundary wall, which wall separates the lot from common property. It is not necessary to determine the precise location within that boundary wall that each window is actually installed, as the whole window falls within the parameters of the legislative obligation. It is therefore immaterial that the flashings were on the inside of the window.

I have ordered that the body corporate shall reimburse the sum of $440.00 to the applicant within 1 month of the date of my order.