Havon Home Units [2004] QBCCMCmr 9 (8 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0285-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14855
Name of Scheme:	Havon Home Units
Address of Scheme:	45 Moray Street NEW FARM QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Audrey May Mackay, the owner of lot 3

I hereby order that within one (1) month of the date of this order, the body corporate, at its expense, shall cause an investigation to be undertaken of the water leak into the kitchen of lot 3, owned by Audrey May Mackay. I further order that the party determined to be responsible for the repair of the leak (either the body corporate or the owner of a lot situated above lot 3), shall attend to necessary repairs to the cause of the leak within one month of the relevant investigation being completed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0285-2003

"Havon Home Units" CTS 14855

The applicant, Audrey May Mackay, the owner of lot 3 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

That the body corporate rectify, at its cost water leakage into my kitchen ceiling and rectify the consequential damage to my kitchen.

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 scheme is registered under a building unit plan of subdivision, and contains 30 lots.

The application

The applicant has made application that the body corporate rectify, at its cost water leakage into her kitchen ceiling and rectify the consequential damage to the kitchen.

In her grounds the applicant states that water has been leaking into her kitchen for some 5 years, causing considerable damage to the ceiling and walls. The applicant states that she has made "numerous complaints over the five years to successive body corporate managers". The applicant concludes that –

The water is originating from somewhere else in the building other than my unit and the rectification of the leakage and consequential damage is clearly the responsibility of the body corporate.

Submissions

Submissions were inviting regarding the application from the body corporate committee and all owners. Two owners, one a member of the committee, have responded. This level of response suggests to me that the applicant is correct in her statement that she has made numerous complaints to successive managers. Certainly the lack of a submission from the committee regarding the application suggests to me a that the committee is not operating effectively.

The two submissions received suggest that it is necessary to first determine the source or cause of water penetration. Perhaps the approach of the applicant to this issue has not been clear enough. Certainly, in my view, issues of this nature should be raised in writing, and referred to the committee, not the body corporate manager. It is part of the role of the committee to investigate, or delegate the investigation, of matters of this nature.

One owner has suggests that the applicant "must establish that the problem is caused by plumbing within the common area of the building before the body corporate can be said to be wholly responsible. A proper investigation needs to be undertaken at Ms Mackay’s initial expense to establish the true source / cause of the problem before the responsibility can be attached to the body corporate, or anyone else".

I disagree with this approach. It is difficult for an owner to initiate such an investigation. In contrast to the body corporate, an owner does not have authority to enter other lots. Clearly, the leaks is coming from above. There are two possibilities in my view. The first is that the leak is caused from pipes or other utility infrastructure located in the slab above the applicant’s lot, or otherwise from utility infrastructure which the body corporate is responsible to maintain. If so then the leak will be the responsibility of the body corporate to repair. The second alternative is that the leak is caused by a leak from the shower, bathroom or kitchen of the lot above. Depending on a number of factors, including the application of section 20 of the Act, this may or may not be the responsibility of the owner of that lot to repair.

I conclude that an investigation is necessary to determine the cause of the leak. I intend to order that this investigation should be undertaken by the body corporate, at its expense. If it is subsequently determined that the leak is the responsibility of another owner to repair, then these investigation costs should similarly be the responsibility of the owner in question. At this stage I cannot order the body corporate to undertake necessary repairs as the applicant seeks, since it is not yet clear that the body corporate is in fact responsible. In the circumstances, I intend to make a more general order that the party found to be responsible for the repair of the leak, either the body corporate or the owner of a lot situated above that of the applicant, shall attend to necessary repairs within one month of the relevant investigation being completed.

I consider that this party will also be liable for and responsible for repair of consequential damage to the applicant’s lot in accordance with section 281 of the Act. However, as this has not been quantified by the applicant in her material, and since the party responsible is as yet unknown, I consider that it is not possible to make an order to this effect at this stage. I consider that this will need to be discussed between the relevant parties once the investigation is complete and the cause of the leak into the applicant’s lot is known.