Montage Apartments [2004] QBCCMCmr 83 (12 February 2004)

Number of Scheme:	29508
Name of Scheme:	Montage Apartments
Address of Scheme:	285 Bowen Terrace, NEW FARM QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Kara Draffin, the occupier of lot 4

I hereby order that the application by, Kara Draffin, the occupier of lot 4, for orders, quote -

1. I am seeking $1744.47 to repair the damage to my car which was caused by a substance leaking above my allocated car space within The Montage Apartments;
2. I am also seeking $462 to cover all costs in trying to resolve this matter with my solicitor, Real Estate agent and the body corporate for The Montage Apartments,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0537-2003

"Montage Apartments" CTS 29508

The applicant, Kara Draffin, the occupier of lot 4, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

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)).

The scheme

The scheme is a subdivision of 7 lots recorded under a building format plan of subdivision.

The application and submissions

The position of both the applicant and the respondent body corporate are known to the other from the application, submission and reply procedures. Consequently I do not intend to restate either parties’ position in any detail. Essentially, the position of the applicant is that the body corporate I responsible for the damage to her vehicle given that it was responsible for the maintenance of common property the failure of which caused the damage to the vehicle.

The position of the body corporate is that it is not responsible, did not contravene the Act, and immediately took all necessary action to repair the roof; that the applicant had a duty to mitigate her loss and should have claimed against her own insurer.

What is not disputed however by the body corporate is the cause of the damage to the applicant’s vehicle. The body corporate submission acknowledges that the cause of damage was the leak of a substance from the roof of the garage or car parking space of lot 4.

Inspection of scheme

On Wednesday 11 February 2004, I undertook as part of my investigation an inspection of the scheme. The inspection was attended by the applicant and two representatives from the body corporate manager. No member of the committee, or owners of lots 2 and 4 nor representatives of those owners attended the inspection, notwithstanding notification of the inspection and an invitation to this effect.

The registered plan for the scheme shows that the car parking space for lot 4 is part of the title for that lot, and is not common property allocated by way of exclusive use. The plan further shows that located above the car parking spaces for lots 1 to 6 is lot 2. The dividing or boundary between two lots with adjoining boundaries, or a lot and common property, is the centre point of the floor, wall or ceiling. In this case, the boundary is the centre of the concrete ceiling slab above the car parking space for lot 4 and the floor of lot 2. No part of this slab is common property for which the body corporate is responsible.

The material alleges that the location of the leak was a snap tie join located in the concrete ceiling of lot 4. At the inspection, I was informed by the building supervisor engaged by the body corporate manager that the purpose of a snap tie join was in connection with the construction of the slab. A snap tie join was a method by which the builder held the steel reinforcement in the concrete slab in or near the centre point of the slab. Given this I conclude that the snap tie join is not part of the utility infrastructure for the building; rather it is an aid to construction of the building, which serves no continuing purpose one construction of the building is completed.

On the basis of the above analysis, I conclude that no part of the ceiling above the car parking space is common property the responsibility of the body corporate to maintain; nor is the snap tie join part of the utility infrastructure of the building which the body corporate is also responsible to maintain. As the concrete slab ceiling above the car park for lot 4 forms part of the titles for both lots 2 and 4, then I conclude that in naming the body corporate as the other party to this dispute, the applicant is in error. Given that the period in which the applicant might apply to amend her application has passed, this application must be dismissed for the reason that there is no basis for the body corporate being liable for the claim. Accordingly I have dismissed this application.

The applicant is at liberty to make further application. However, in doing so, the applicant will need to bring her claim within the terms of section 281 of the Act, quote –

281 Order to repair damage or reimburse amount paid for carrying out repairs
(1) If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention--
(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or
(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.
Example--
A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition, the adjudicator could, on application of the lot’s owner, order the body corporate to have the damage repaired or to pay an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.
(2) The order can not be made if--
(a) for an order under subsection (1)(a)--the cost of carrying out the repairs is more than $75 000; or
(b) for an order made under subsection (1)(b)--the amount fixed by the adjudicator would be more than $10 000.

Clearly the terms of this section allow an award of compensation to be made to a person who has suffered damage to property because of a contravention of this Act or the community management statement. However, an adjudicator can only make such an order where he or she believes, on reasonable grounds, that the person against whom the order is made is so responsible. To do this the applicant would need to establish that either the owner of lot 2 or lot 4 were responsible, that their action (or lack of action) amounted to a contravention of the Act, and that it is reasonable to make the order against them. I conclude that in the circumstances of the current application it would be difficult to establish that the requirements of section 281 have been met.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Montage Apartments [2004] QBCCMCmr 83 (12 February 2004)