Barcaldine [2005] QBCCMCmr 396 (25 July 2005)

Last Updated: 19 July 2006

REFERENCE: 0191-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17668
Name of Scheme:	Barcaldine
Address of Scheme:	9 Jerdanefield Road St Lucia Qld 4067

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate of the Barcaldine Community Titles Scheme:

I hereby order that the application for an order that the owners of Lot 3 (J Grice and P Bastion) and Lot 4 (L Briais) in the Barcaldine Community Titles Scheme pay for the rectification work to repair the problem with the water ingress into the garages, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0191-2005

Barcaldine 17668

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

"Owners of units 3 and 4 repair the problem with the water ingress into the garages and
that they pay for the rectification work."

Jurisdiction:

This is a dispute between the Body Corporate of the Barcaldine Community Titles Scheme (the
Applicant) and the owners of Lot 3 (J Grice and P Bastion) and Lot 4 (L Briais) (the Respondents)
concerning water ingress into garages under the Respondents’ lots. This is a matter which falls
within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

Application and Submissions:

Under section 243 of the Act, a copy of the application was provided to the Respondents with an invitation to respond to the matters in dispute raised in the application. The Respondents have provided submissions in reply to the application.

I do not propose to outline in any detail the materials submitted in support and in reply to the application. I will however provide an overview of the major points raised.

The Applicant alleges that water has been leaking into the garages of units 2, 4 and 5 which are located directly below the Respondents’ units. The Applicant has provided an extensive engineers report which reports amongst other things that:-

"The external patio of Unit 4 runs over the top of the garages of units 2 and 7."

"The external patio of Unit 3 runs over the top of the garages of units 4 and 5."

"The normal philosophy with design of garages under home unit buildings is either to have the garages completely waterproofed, or to take no particular waterproofing action, recognise that they will leak, and provide a means for water discharge. It is evident that the garages of this building fall into the latter category. There are several areas however where water entry is excessive, and action should be taken to diminish the inflow."

"In the garage of Unit 2, high in the southern wall there is a severe stain and obvious entry point. The cause of this was traced to a lack of sealant in the gap between the back of the patio parapet above (unit 4) and the main brick wall of the building."

"By far the greatest source of unwanted water penetration is from water penetration from the garden beds on the patios of units 3 and to a lesser extent unit 4. These garden beds are not waterproofed, and even light watering would penetrate into the porous blockwork and thus down into the garages below. The penetration has been particularly severe in the garage of unit 5 ... , and water has also penetrated through cracks into the garage of unit 4."

The engineers engaged were Hughes, Beal & Wright Pty Ltd of Yeronga, Brisbane. It is noted that although a visual inspection of the garden beds was undertaken they were not emptied to allow a complete inspection to be made.

The Applicant has received various quotes for work recommended in the engineers report. The prices received for undertaking the repairs vary.

These quotes and the engineers report have been put to the Respondents however no agreement for the payment for the work has been reached due principally to arguments of liability.

The Respondents have provided submissions in reply to the application. The essence of the arguments they raise are:

•	The Body Corporate has provided insufficient evidence of the cause of the problem;
•	Section 109 of the Body Corporate and Community Management (Standard Module) Regulation 1997 imposes responsibility onto the Body Corporate for maintaining the waterproofing of the garage areas in question;
•	Previous orders made in this jurisdiction have applied section 109 (as outlined immediately above) which have dealt with similar fact situations to impose responsibility onto the body corporate in question for maintaining waterproofing membranes;
•	In applying the above section/principle portions of the work to done as provided for in the quotes are clearly the responsibility of the Body Corporate namely retiling and resealing the patio areas;
•	A visual inspection of the garden beds were conducted by the engineers however the gardens beds were not emptied and therefore an assessment of the waterproofing qualities of the garden bed could not have been properly made;
•	An ‘independent expert’ inspected unit 4’s garden bed (after it was emptied) and no cracks in the waterproof membrane were discovered;
•	There is an apparent conflict in the evidence that water is penetrating into the different garages as suggested in the application.

The above comments appear to correctly reflect the position adopted by the Applicant and Respondents in this matter. As the Applicant was unable to reach a satisfactory outcome they have made a dispute resolution application to this Office which has been referred for adjudication.

Determination:

The "Barcaldine" Community Titles Scheme was established as a building units plan (now termed a building format plan) in 1994. Having been established under the Building Units and Group Titles Act 1980, under the transitional provisions of the (new) Act the scheme immediately became subject to the provisions of the (new) Act when it came into force. In July 2000 a new community management statement was lodged which brought the scheme under the regulation of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). The scheme remains under the regulation of the Act and the Standard Module.

It is quite clear from that from the registered plan that lots 3 and 4 (the Respondents’ units) patios are part of the each lot respectively and not part of the common property of the scheme. The position of the Standard Module, as far as maintenance of the lot is concerned, is to place the responsibility of lot maintenance onto lot owners (see section 120 of the Standard Module). The legislation provides exceptions to this position. The exceptions are included in section 109 of the Standard Module.

Section 109 of the the Standard Module deals with the body corporate’s responsibility to maintain certain areas of the scheme that are not common property. The section provides:-

"Duties of body corporate about common property--Act, s 152
109(2) To the extent that lots included in the scheme are created under a

building format plan of subdivision, the body corporate must--

...
(b) maintain the following elements of scheme land that are not
common property in a structurally sound condition--

(ii) roofing or other covering structures providing protection;"

Underlining added

It is clear that the patio areas form a roofing or covering structure which provides protection to the garges in question. On this basis I am of the view that the maintenance responsibility imposed by section 120 of the Standard Module is displaced and the Applicant is responsible for the maintenance of the patios as far as they provide a roofing or covering structure which provides protection. Some clarification at this point may assist.

In general terms the responsibility of a body corporate in this instance is to ensure the patios achieve a roofing (waterproof) function in accordance with section 109 of the Standard Module. To ensure this is achieved the body corporate may be required to inspect, repair and/or maintain the patio areas from time to time. In the event that repair was required then the repairs are to achieve that roofing/waterproofing function only. The repairs ought not satisfy the respective lot owners desire to up date or modernise their units without a greater contribution from them.

If the body corporate was to undertake lifting of the tiles, waterproofing etc it would be expected that they would return the patio surface to as near as possible the same condition to what it was prior to the work commencing. If the respective lot owners wanted to up date the final appearance or quality of the tiles used it would only be reasonable for them to pay the difference in price for the higher quality tile (or different surface material etc.). The respective lot owners will of course be required to pay their portion of any levy rasied to pay for the waterproofing work to be done also.

One area of contention remains in my view. It may be suggested that the garden beds do not form part of the patio and therefore the Respondents ought to attend to any repair (if in deed there is a need for any repairs to be undertaken to the garden beds) in accordance with section 120 of the Standard Module. As the garden beds form an integral part of each patio (are built into them) I am unwilling to distinguish the garden beds as a separate from the patio for the purposes of applying section 109 of the Standard Module.
For the above reasons I am of the view that the Respondents (J Grice, P Bastion and L Briais) are not responsible for paying for the rectification work as outlined in the application to address the water ingress problems and that responsibility lies with the Applicant in accordance with section 109 of the the Standard Module.

I order that the application be dismissed.

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