Pine Court Lodge [2005] QBCCMCmr 33 (21 January 2005)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Stephen Baddiley, the owner of lot 3

I hereby order that within 6 weeks of the date of this order, the body corporate for Pine Court Lodge shall pay to the owner of lot 3, Stephen Baddiley the amount of $615 being in satisfaction of its liability for responsibility for water penetration to lot 3, excluding the cost of repair of the bathroom ducting.

I further order that within 6 weeks of the date of this order, the owner of lot 7, Grant Barrett shall pay to the owner of lot 3, Stephen Baddiley the amount of $307.50 being in satisfaction of its liability for responsibility for water penetration to lot 3, excluding the cost of repair of the bathroom ducting.

I further order that within 6 weeks of the date of this order, the body corporate for Pine Court Lodge shall obtain a quotation or quotations for the repair by reinstatement of the ducting concealing the pipe work in the bathroom of lot 3. Thereafter the body corporate shall select a contractor to undertake the necessary reinstatement work to the bathroom of lot 3.

I further order that the owner of lot 3, Stephen Baddiley shall allow the body corporate reasonable access to his lot to allow for quotes to be obtained, and for the repairs to be undertaken.

I further order that on completion of the work and payment of the contractor by the body corporate, the body corporate shall be entitled to invoice –

• the owner of lot 3, Stephen Baddiley, 10% of the cost to the body corporate of reinstating the ducting in the bathroom of lot 3;
• the owner of lot 7, Grant Barrett, 30% of the cost to the body corporate of reinstating the ducting in the bathroom of lot 3,

and such amounts shall be paid by those owners respectively within one month of the date of the invoice sent by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0231-2004

"Pine Court Lodge" CTS 13545

The applicant, Stephen Baddiley, 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 –

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 is a subdivision of 8 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the Standard Module.

This dispute concerns alleged water penetration to the applicant’s lot from lot 7 above, now owned by Grant Barrett (Barrett), the responsibility for repair of that damage and compensation for repairs. It is not disputed by any of the parties that water penetration did occur to the applicant’s lot 3 causing damage.

Section 281 of the Act provides:

The investigation of this dispute has been lengthy. Due to the lack of clear information or evidence of the source and location of the water leak, responsibility has been difficult to determine. In addition to the application and submission process, investigation by myself has included two teleconferences, numerous telephone attendances by this office, a further report being provided by one of the parties, and finally, a physical inspection of both units, and a meeting with both parties (on Wednesday 19 January 2005) to clarify several aspects of this dispute.

The actual fact of the water penetration to the applicant’s lot was confirmed in a report provided with the original application. The report, by John Butler of Domestic & Commercial Building Inspections dated 4 March 2004 stated in part:

I have the benefit of a lengthy submission from the body corporate. That submission has much detail of the history of the dispute, and particularly of the actions of the previous owner which are alleged to have been generally unhelpful. The owner of lot 7 at the time the dispute first arose has since sold the unit to Barrett. The evidence suggests that Barrett is or at least was the partner of the original owner at that time, and was aware of the on going dispute regarding water penetration to lot 3. The body corporate submission suggests that the cause of the water penetration to lot 3 is "that with time, the tile grouting dries out. The main problem occurs when this happens where the ceramic tiles meet the bath. The seal is no longer water proof and shower water can pass down between the wall and the rim of the bath. ... The body corporate has no fixed policy on what should be done other than water should not run down to the unit below and any damage caused to be paid for by the culprit".

It is noted that this analysis of the problem is completely different from the conclusion in the report by Butler. That report concludes that the problem was "a fitting was loose and leaking".

Section 120 of the standard module provides that the owner of a lot must maintain the lot in good condition. Section 120 of the standard module further provides –

There is also a substantial submission in response to the dispute from Barrett. He states in part:

From this submission, it is noted that a third possible cause or source of water penetration is suggested: namely lack of ventilation and simply wear and tear due to the age of the building and presumably, lack of maintenance. Barrett attributes these causes to the applicant as owner of the lot.

I will add at this point that the further report which I required to be provided by Barrett was of no benefit whatsoever, in that it did not seek to determine the cause or source of the leak, but merely concluded that "no water pipes or drainage pipes were found to be damaged or leaking".

Given the difficulty in determining the cause or source of the leak, and the lack of information regarding the actual location of pipes etc, and also determining the level of actual damage occasioned to the applicant’s lot of which little detail had been provided, I determined to undertake an inspection of the scheme, and to meet with the parties. This occurred on Wednesday 19 January 2005 and was of considerable assistance in determining many aspects of the dispute.

The most significant aspect of this inspection was to understand the location of the pipes. All the pipes / drains for Barrett’s lot 7 are, after breaching the slab concrete floor between lots 3 and 7, located within lot 3. This includes waste water pipes and sewerage pipes. Certain of these pipes then connect with pipes servicing lot 3 and others do not. The pipes then continue through the concrete slab floor of lot 3 into a garage. In particular, it is relevant to note that the P trap referred to in the Butler report and said to be leaking when tested, is located wholly within lot 3. The effect of the pipes for lot 7 being located within lot 3 is that the pipes are utility infrastructure which does not fall within the exception set out in section 20 of the Act, and consequently, are deemed to be common property of the scheme. Under section 109 of the standard module, the body corporate is responsible to maintain the common property of the parcel in good condition. Effectively, this means that the body corporate is responsible for the repair of the pipes, since under section 20 of the Act, the pipes are utility infrastructure deemed to be common property.

The evidence before me does not establish categorically one single cause or source of the water leak. It may in fact be that the cause and source of the leak was multiple. That it was both the failure of tile grout and bathroom sealants as well as a leak in the actual waste water pipe at the location of the P trap.

In addition to this, it also appears that there must have been some other form of leak within lot 7 itself where water escaped because of the fact that there are some areas on the ceiling of lot 3 which have been affected by water. There are at least two areas of water penetration resulting in discolouration of the ceiling of the applicant’s lot; the first is in the south west corner of the applicant’s bathroom, and the second in the south east corner of the applicant’s kitchen. This second water penetration is shown in the photos provided with the Butler report (photo 01) and referred to in the statement quoted above.

Whilst the owner of lot 7 (Barrett) is not responsible for the pipes servicing his lot, he is responsible to ensure that his lot is generally waterproof. Given that the ceiling of the applicant’s lot show’s discolouration, then I suggest that this evidences some escape of water from Barrett’s lot other than simply through the leaking P trap identified in the Butler report. Finally, given that all the pipework at least was located entirely within the applicant’s lot, and not accessible or observable by any other owner or the body corporate, that perhaps the owner had a responsibility to act earlier. For example, what was indicated to me at the inspection was that the water from the P trap was stopped simply by the tightening of a fitting associated with the P trap. Certainly it was not within the ability of Barrett to even be aware of, let alone repair, a leak occurring within lot 3. Although after being informed of such leak, perhaps the then owner of that lot should have taken a more conciliatory approach to the resolution of the problem.

In the circumstances, I conclude that all three parties (the applicant, the owner of lot 7 (Barrett) and the body corporate) bear some responsibility for the water leaks and consequent damage to lot 3. I intend to apportion responsibility on the following percentage basis:

Whilst this apportionment is somewhat arbitrary, I conclude that it fairly and reasonably apportions responsibility based on what appears to me to be multiple causes / sources of water penetration to the applicant’s lot.

I now turn to consider the question of the extent of the damage and what is required. Generally, whilst I acknowledge that there has been some damage to the applicant’s lot, I conclude from the inspection that this damage was not extensive. I note that the applicant has sought "an amount of $2500 to cover the cost of repair work to the lot 3 caused by water damage". The first issue is whether the water leak has in fact been stopped. My questions of the applicant at the inspection appeared to confirm that this was the case, although he reasonably expressed concerns that a leak might re-occur in the future. I understand from statements in Barrett’s submission, and also statements made by him at the inspection, that Barrett is in the process of or about to renovation both his bathroom and parts of his kitchen. In his submission, he states –

If this is done, then presumably it will reduce the risk of water penetration from lot 7, at least that which is attributable simply to lack of or failure of proper or effective waterproofing.

As part of his application, the applicant has provided copies of certain invoices and quotes for repair work. These include:

The expense of the Butler report is a given. The quote for the kitchen however is for a replacement kitchen, or at least cabinets. At the inspection, the state of, and damage done to, the kitchen was considered. I conclude that the damage done was limited and more in the nature of aesthetic. For example, the only real visible evidence of damage was to the chipboard base or plinth on which the kitchen cupboards stand. Further damage was visible to the rear wall of the kitchen when a large draw was removed. However this damage was not apparent otherwise. In other respects, the kitchen was and remained in good condition. I certainly did not conclude that the kitchen required replacement due to the water penetration, and that the applicant’s choosing to replace the kitchen cupboards was a matter of choice on his part rather than necessity. The maximum I am prepared to allow for repairs to the kitchen is $400.

The final expense is the $1850 for the reinstatement of the bathroom ducting. This quote does appear to me to be excessive. The necessary materials would not be considerable, and even allowing $350 for materials, this leaves $1500 for labour. A carpenter at $40 per hour would not take 37.5 hours to construct the new ducting work. As well, the quote includes "demolition, removal and disposal" which has already been done.

In the circumstances, I intend to order that the body corporate, who will be the largest contributor to the cost of repairs, obtain quotes for the repair of the bathroom ducting, and accept the quote which it considers to be the most reasonable.

What is not mentioned here, but was raised by the applicant at the inspection was the replacement of tiles on the kitchen floor. There was an area of perhaps 2 square metres where tiles had lifted. The applicant states that this had occurred due to the fact of the water penetration to the lot causing them to become drummy. No quote was provided in respect of this expense. From recent personal experience of tiling, I suggest that tiles can be purchased for perhaps $30 - $40 and laid for a similar amount. At two square metres, I am prepared to allow a figure of say $150 for the tiling.

I calculate the amounts to be as follows:

The butler report 475
Kitchen 400
Tiling 150

Total 1025

Body Corporate (60% of $1025) $615
Barrett – Lot 7 (30% of $1025) $307.50
Baddiley – lot 3 (10% of $1025) $102.50

These figures are independent of the cost of the repair of the ducting in the applicant’s bathroom, which when the quotes are available, and one chosen, the cost to each party should be calculated on the same basis as set out (namely 60/30/10 to the Body corporate/ Barrett/ Baddiley respectively).

I have ordered to this effect. Obviously it is for the body corporate to organise the quotes for the bathroom ducting, and to liaise with Baddiley regarding access for quotes and also to undertake repair work. The body corporate should pay the account for this work, and then seek contribution from Barrett and Baddiley for their shares.

As for all other items, I intend to order that the Body Corporate and Barrett shall pay to Baddiley, within 6 weeks of the date of this order, the amounts set out respectively, in satisfaction of the other claims. It is then for Baddiley to undertake the repairs when he chooses.

Number of Scheme:	13545
Name of Scheme:	Pine Court Lodge
Address of Scheme:	1371 Gold Coast Highway PALM BEACH QLD 4221

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Pine Court Lodge [2005] QBCCMCmr 33 (21 January 2005)