The Islander [2004] QBCCMCmr 509 (27 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0354-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7963
Name of Scheme:	The Islander
Address of Scheme:	East Coast Road, POINT LOOKOUT QLD 4183

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

the Body Corporate of "The Islander" Community Title Scheme 7963.

I hereby order that the body corporate is responsible for meeting the costs incurred in locating and repairing the leak in the cold water pipe located in the under floor slab of lot 21, namely $1,019.89 payable to the plumbing contractor and $88 payable to the electrical contractor.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0354-2004

"The Islander" CTS 7963

The applicant, the body corporate for the above scheme, has sought the following declaratory order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) "To determine if the Body Corporate is responsible for the plumbing repairs to the cold water Cu line to the kitchen sink in unit 21".

Section 227(1)(b) of the Act provides that a dispute between an owner or occupier of a lot and the body corporate for a community titles scheme is a dispute which may be resolved under the dispute resolution provisions 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)).


The scheme

"The Islander" is a subdivision of 24 lots registered under a building format plan. The regulation module applying to the scheme is the Accommodation module.

A cold water leak was detected in the concrete floor of unit 21 in November 2003. The process of identifying, locating and rectifying the leak in the concrete slab floor of unit 21 is detailed in the attachments to the submission by the owner of lot 21 including a plumber’s invoice dated 31/12/2003. In order to expose the leaking pipe for repair, it was necessary for the plumber to jackhammer the concrete slab floor. The total cost of location and repair of the leak was $1,019.89.

Section 108 of the Accommodation Module Regulation provides as follows:
108 Duties of body corporate about common property Act, s 152

(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.

Section 20(1) of the Act relevantly provides:
Common property for a community titles scheme includes all utility infrastructure forming part of scheme land, except utility infrastructure-
(a) solely related to supplying utility services to a lot; and

(b) within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and
(c ) located other than within a boundary structure for the lot.



The expression "utility infrastructure" is defined in Schedule 6 to the Act to include:
cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services.

The definition of "utility service" includes "water reticulation or supply".

Decision

Given that the plumber was required to jackhammer the concrete floor in order to access the leaking pipe, it is clear that the leaking pipe was encased in the concrete slab floor. As this scheme is a building unit format, the concrete floor of lot 21 is also the ceiling for those lots below and is therefore a boundary structure. A cold water pipe located in the slab floor is part of the utility infrastructure, and is therefore common property.

It is noted from correspondence that a subsequent water leak has occurred in lot 21. However this application relates to costs which have already been incurred in engaging tradesmen. Further, I do not have sufficient evidence before me to determine whether the cost of remedying the subsequent leak is the responsibility of the body corporate or the individual lot owner. I believe that this can be determined by the parties according to whether or not the leak emanates from common property.

Accordingly, I find that the body corporate is responsible for meeting the costs incurred in locating and repairing the leak in the cold water pipe located in the under floor slab of lot 21, namely
$1,019.89 payable to the plumbing contractor and $88 payable to the electrical contractor.