Carool [2005] QBCCMCmr 29 (18 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0834-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10241
Name of Scheme:	Carool
Address of Scheme:	5 Eden Avenue RAINBOW BAY QLD 4225

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

Ann WILLIAMS, as the owner of Lot 1,

I hereby order that the application for the following interim order - "We seek to have the unannounced temporary barricades and signage removed from the west side driveway which currently prevents total access into or out of the basement (under town houses only) car park by each of the three townhouse owners and visitors," is dismissed. I further order that the body corporate committee must immediately take steps to put reasonable and appropriate signage and safety barricades in place in accordance with the written recommendations of Ian Rickard, Consulting Engineer, in his second report dated 21 December 2004, and must ensure that they stay in place, pending the final order in determination of this application. I further order that the committee must provide a copy of the reports of Ian Rickard and of Ray Griffiths, builder, to the owners of Lots 1, 2 and 3 if they have not already been supplied to them, and further must advise these same owners of the signage and safety barricades it considers necessary to meet the recommendations. I further order that this interim order has effect for a period of three (3) months from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0834-2004

"Carool" CTS 10241

The applicant, Ann Williams of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"We seek to have the unannounced temporary barricades and signage removed from the west side driveway which currently prevents total access into or out of the basement (under town houses only) car park by each of the three townhouse owners and visitors."

(We the townhouse owners were never involved in, informed of, view reports (technical or otherwise) or otherwise notified of the works, investigations or other actions that led to or initiated the current actions, directives or orders. We were simply awoken at approximately 0600 this morning to be advised by the supervisor representing Romano constructions (also member of the Carool Management Committee) that this work had been ordered. Now we are denied access to the car park.)
[Adjudicator’s Note: The above comments, though included by the applicant as part of the order sought, should properly be regarded as part of the supporting grounds.]

The applicant has also made application for interim orders in identical terms to the final order set out above, and this order is a determination of this application.


JURISDICTION:
This is a dispute between an owner (the applicant Ann Williams), and the body corporate (the respondent), concerning action authorised by the body corporate committee to erect signs and barricades that interfere with the use by owners of the townhouse lots, being Lots 1, 2 and 3, of their respective garages. The signs and barricades were erected upon the expert advice of an engineer and builder that the brickwork mortar and metal ties incorporated in the western exterior wall of the townhouse building were defective and the area needed to be cordoned off because of the danger of falling bricks. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and may be dealt with by a departmental adjudicator.

Section 279 of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284 of the Act).


APPLICATION and SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (committee) with an invitation to respond by written submission to the matters raised in the application. The committee subsequently submitted a response, including copies of relevant documents, opposing the order sought by the applicant.

The applicant appears to be the spokesperson for the other two "townhouse" owners, namely John Utz of Lot 2 and Jacquelyn and Wayne Stevens of Lot 3, though she is the only person nominated and signing as the applicant.

The applicant Williams states that, though the signage and barricades directly affect the townhouse owners, they have "...never been involved in, informed of, view reports (technical or otherwise) or otherwise notified of the works, investigations, or other actions..." Her complaint is against the body corporate committee which, she says, has initiated actions that have seriously disadvantaged the townhouse owners in not being able to access their garages. They state that on 23 December 2004 a representative of Romano Constructions (affiliated with an owner and committee member, Bap Romano) informed her at her door that the driveway to the townhouse car park area was to be blocked and scaffolding erected at the western (townhouse) boundary of the scheme. She states that the Body Corporate Manager, Mark Purtell of Strata Title Management, had no knowledge of the building report being relied on by the committee, or of the works, and enquiries to the chairperson, Chris Boyle, were ignored.

The applicant has attached copies of emails between David Williams, a committee member (and the applicant’s spouse), and the Resident Manager, Phillip Roddy, including one dated 22 December 2004 reporting how he (Williams) had argued with the committee that the townhouse owners had initiated their own "review of the state of the brickwork and had developed two strategies to deal with the problem" but the committee had chosen to act without reference to them.

The applicant also attached as part of her grounds, a copy of a report dated 10 June 2004 by Charlie Ferguson of RK Building Inspections on the state of the building, who concluded that it had no major defects. The report, however, does say in respect of the brickwork, "Mortar is very sandy (Not enough cement used in construction – contact bricklayer for advice)", though does go on to say, "Basically a strong building with some maintenance issues, i.e., Roof, replacement of external timbers, paint damage, etc."

The committee states that it first became aware of the problem on 12 November 2004. It was discussed at an extraordinary general meeting on 17 November 2004 by David Williams, from whom the committee became aware of the comments by Ferguson regarding as possible mortar problem. As a result of this information, at its meeting on 12 December the committee authorised Bap Romano to investigate the problem. The following two reports, copies of which have been supplied with the committee submission, were subsequently obtained.

Ian Rickard, Consulting Engineer, carried out a site inspection on 18 November (I note this was carried out before the committee’s authorisation) followed by a further inspection on 20 December. The initial report found that the mortar had eroded and could be easily raked out. It also contained an opinion, which could only be verified by an invasive inspection of the brickwork, that the holding ties embedded in the mortar may have rusted because of the state of the mortar.

At the second inspection by Rickard, the brickwork was inspected in three locations and it was found that the metal ties had in fact deteriorated – the locations were in a sheltered position and more exposed brickwork could be assumed to be in a worse condition. The report conclusion reads –

"It is imperative that rectification work is carried out on this building and that the external skin of brickwork is totally removed and rebuilt with stainless steel ties, epoxied into the inner skin of brickwork and mortared into the new external brick skin.

As this work cannot be carried out immediately it is imperative that steps are immediately taken to safeguard people from injury from potentially falling bricks.

Access to this area should be closed off immediately and if you require to maintain this access then a safety canopy should be erected to withstand the failure of the brick walls above to protect the people under.

IN relation to the driveway to the carpark this should be cordoned off and if access to the carpark is required then people should be advised of the potential failure of the wall and proceed at their own risk."

The second report obtained by the committee was from Ray Griffiths, a licensed builder, who also carried out an inspection on 18 November followed by a further one on 20 December, both in company with Ian Rickard and Romano. That is, on both occasions both Rickard and Griffiths carried out joint inspections though they submitted separate reports – a committee member(s) were present at the inspection. There was also a subsequent teleconference between Rickard, Griffiths, Romano and Chris Boyle, chairperson, on the findings of the inspection.

In the "Opinion" section of his report, Griffiths states (in bold type) the following –

"Accordingly, I believe there could be some considerable risk to the occupants and the public from falling bricks if my suspicions are confirmed by Mr Rickard.

There is however obvious and unqualified risk of falling bricks from the capping bricks to the ends of the walls regardless of any other considerations regarding the cavity ties and something must be done to ensure public safety in this regard even if nothing else is considered.

Therefore I strongly advise steps be immediately taken to make the site safe by immediately closing the affected areas to the occupants and public at least while other means are investigated and installed for protection purposes."

The committee has also submitted a copy of an email from Tony Wheeler, Area Manager for CGU Insurance Australia Group, commenting on the body corporate public liability insurance, which states in part -

"It is the responsibility of the property owner, in this case the body corporate, to take all reasonable precautions to prevent any property damage or personal injury occurring on the property.

The body corporate is now aware of the potential for damage or injury to occur due to the reasons outlined in the engineers report and therefore, has an obligation under the policy to prevent access to all affected areas so damage or injury does not occur.

If the body corporate does not take any action to prevent access to the dangerous areas and make people aware of the situation by signage etc, there is the potential that a claim should it occur, may not be met."

The committee has made further comments on the application material, however it is not necessary that I review them here in order to reach a decision in the application for an interim order. The only comment I will make is that the committee has reported that Roddy was asked by the committee to advise the townhouse owners of the committee’s findings and decision. Also, the committee submits that barricades and signage were removed by unknown persons on 23 December.


DETERMINATION:
"Carool" was registered as a building units plan (now termed a building format plan) on 31 May 1982 and comprises 35 lots with a two-building configuration, one comprising 3 "townhouses" (Lots 1 to 3) and the other a high-rise tower of 32 lots (Lots 4 to 35). It is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module").

In this order I am concerned solely with the determination of the application for an interim order.

This application was submitted on 24 December 2004 but submissions did not close until 14 January. In view of the situation of the body corporate I am making this interim order without further delay. I would stress that it is only an interim order (in the nature of an injunction) that has effect for the period given in the order (which may be extended if necessary).

It would appear that the townhouse owners have not been properly advised by the committee of the findings and recommendations of the engineer and builder it engaged. The arrangement to have the Resident Manager verbally advise them was not appropriate in view of the serious impact the safety works were to have. However, the fact that the townhouse owners engaged a builder (Ferguson) to inspect their building as early as June 2004 means that a problem was at least suspected by one or more of them.
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In any case, regardless of what may have been the state of knowledge of the various parties (which will probably be clearer in making the final order), the findings and recommendations of both the engineer Rickard and the builder Griffiths, are clear and unequivocal in having the body corporate take positive steps to protect both owners and the public from failing brickwork. I know that the report by Ferguson does not make the same urgent recommendations, but it does say that the crumbling mortar should be inspected.

As if the reports are not enough to require the body corporate to act promptly in protecting its members against possible claims for personal injury (note that owners have unlimited liability for the debts of the body corporate, including any damages claim against it successful in the courts), the warning by the body corporate insurer makes clear that the committee has a duty to act promptly to erect the safety signage and barriers.

My order is not only to dismiss the application, but in light of the information that the signage and barricades were removed and may possibly still be removed, to require the body corporate to act in compliance with the recommendations of the experts.

This is the only safe course to follow; if it is found in further investigations, namely by further engineering and building reports that are persuasive evidence in reaching a different conclusions, then the final order to this application will reflect that further evidence.

I can understand the annoyance of the townhouse owners in losing access to their garages and perhaps the body corporate could assist in allowing owners to find temporary parking elsewhere in the scheme, if that is possible. The suggestion by the engineer that owners and others could continue to use the unsafe areas by offering to assume the risk is fraught with legal danger. Such an undertaking will not protect the body corporate against claims by visitors, tradespersons, and even the owners themselves. The body corporate should seek its own private legal advice on this point before any such arrangement or exemption is given.

I am satisfied that an interim order is necessary because of the possible consequences of injury to residents or members of the public from falling bricks; these are urgent circumstances warranting immediate action. I have therefore issued an interim order until such time as the matter is further investigated, including a further submission to the final order, and perhaps a site inspection or teleconference with the parties. In that respect I note in the submission of the committee that it is considering obtaining a second engineering opinion and if obtained a copy should be included with the committee’s submission.

Section 279(2) of the Act provides –

279 Interim orders in context of adjudication
(2) An interim order--

(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and
(c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when--

(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred.

In my order I have provided that the interim order has effect for a period of three months. All parties should be aware of this section and its effect on the interim order. In particular, it is the responsibility of the applicant to request an extension to the interim order period should it become necessary, as this office will not automatically renew an interim order.