Herston Place [2005] QBCCMCmr 443 (10 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0434-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17108
Name of Scheme:	Herston Place
Address of Scheme:	60 Herston Road Kelvin Grove Q 4059

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

Peter Wayne Freak and Christine Patricia Freak, the Owners of Lot 6

I hereby order that the application for a declaration that the body corporate is responsible for repair work to the patio of lot 6, is dismissed as it is the owners of lot 6 who are responsible for the cost of these repairs.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0434-2004

"Herston Place" CTS 17108

The Scheme

"Herston Place" Community Titles Scheme was registered as a building units plan (now known as a building format plan) on 1 June 1995. The scheme comprises six residential lots and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

The Application

This application is brought by the Owners of Lot 6, Peter Wayne Freak and Christine Patricia Freak (the Applicants) seeking an order that the body corporate be held responsible for the cost of repair of structural damage to the patio of Lot 6.

Submissions

Submissions in response to the application were sought from all owners and the body corporate committee, however, no submissions were made.

Background

As previously mentioned, "Herston Place" was registered as a building units plan of subdivision on 1 June 1995. Lot 6 was purchased by Samuel David Vickers and Sandra Louise Earea (hereinafter referred to as the previous owners) from the developers, Conhill Pty Ltd, with the transfer being recorded on 28 August 1996. The previous owners became aware of several defects with Lot 6, including water leaking from the verandah into the garage and a crack in the garage roof with water bubbles evident. A Dispute Notification Form was lodged with the Building Services Authority (BSA) in relation to these and other defects, on 2 June 1997.

As part of my investigation in relation to this matter, I perused the BSA files in relation to Lot 6, "Herston Place", pursuant to my investigative powers under section 271(1)(a)(i) of the Act. A detailed perusal of these files revealed the following information.

After an investigation by the BSA, the builder of the scheme was issued with a Direction to Rectify and/or Complete on 27 August 1997. The required rectification work was eventually carried out and the previous owners notified the BSA that the work had been completed to their satisfaction on 17 December 1997.

The rectification work failed some time later and again, water penetration was occurring from the patio to the garage below. The previous owners notified the BSA of this on 9 March 1998 and requested the BSA to re-open their investigation.

As a result of further investigation by the BSA, a further two Directions to Rectify and/or Complete were issued to the builder, on 23 March 1998 and 3 September 1998. After the builder failed to comply with either of those Directions, the BSA approved the amount of $2,282.50 as an insurance payment to have the required work carried out by a contractor, Mr Pitkin. The BSA was notified that the required work had been completed satisfactorily 4 May 2000.

In addition to the information I obtained from the BSA, this Office also obtained information from the previous owners, particularly in relation to any correspondence they had had with the body corporate regarding this issue. The information supplied reveals that failing waterproofing membranes on balconies had also been an issue for Lots 2 and 4 for some years. After lengthy discussion concerning this issue at the Annual General Meeting held on 22 August 2000, the Body Corporate Managers, Premier Body Corporate Management, notified all Owners via a circular dated 10 October 2000 that owners were individually responsible for membrane repairs, either by going through the Queensland Building Services Authority or arranging for payment for the repairs themselves. Also at this AGM, permission was granted to allow the previous owners to extend the patio area to ensure proper waterproofing of the patio. The material on file indicates that the previous owners arranged to have the entire patio area waterproofed and retiled and to have the hand rail moved to the edge of the patio.

The Applicants purchased Lot 6 in March 2002. In February 2003 the applicants noted that water was entering and damaging the ceiling of the garage of Lot 6 and the body corporate manager arranged for tiles to be lifted and replaced and also for silicone sealant to be applied between the patio and "step down" section. However in November 2003 it became evident that the work done in February had failed as water was again entering and damaging the ceiling to the garage of Lot 6. At an extraordinary general meeting held on 22 April 2004 the body corporate accepted a quote from Blake’s Waterproofing in the amount of $5,417.50 to carry out necessary rectification work to Lot 6. The body corporate has since paid this invoice. Blake’s Waterproofing engaged Acacia Tiling to lift the existing tiles and prepare the surface for waterproofing. The Applicants state that it was at this stage that the problem in dispute came to light. They state that it became apparent that materials used at the end of the patio were found to be rotted and constructed of an inappropriate softwood small gauge material. The area is referred to by tradesmen as the "add-on section of the patio" and is approximately one metre wide and runs the full width of the patio. The Applicants state that despite the reference to the area in question by tradesmen as the "add-on section of the patio", the area has always formed part of the roof of the garage to Lot 6.

A report prepared by J & D Contracting on 22 June 2004 states that "the extended section of the patio is unsafe and has been unsafe since the date of construction". The Applicants again state that the extended section referred to has always been the roof of their garage. They suspect the term is used because of the two different materials that have been used in the construction of the patio.

The Applicants paid the invoice supplied by Acacia Tiling in the amount of $6,479 on 9 August 2004 for the necessary repair work, which included removal and reconstruction of the portion of the patio consisting of the step down section, re-sheeting and painting of the damaged garage ceiling. The Applicants seek that they be reimbursed the total amount of this invoice by the body corporate on the basis that the work required was structural in nature.

In February of this year an adjudicator from this Office held a teleconference with the applicants and the Body Corporate Manager. At that teleconference the applicant advised he would pursue a further claim with the BSA. However in a letter received by this Office on 2 August 2005, the applicant advised that attempts to seek compensation through the BSA were unsuccessful and attached a letter from the BSA which advised as follows:

" The BSA replaced the waterproofing membrane in 2000; sometime after, the previous owner tiled this area and moved the balustrade to its current position. It would be reasonable to assume that the original framing was not designed for the increased loading. Unfortunately in this instance, the Authority is unable to provide any further assistance."

Decision

"Herston Place" was registered as a building units plan under the relevant piece of legislation then in place, the Building Units and Group Titles Act 1980 (hereafter the "BUGT Act") on 1 June 1995. The current Act replaced the BUGT Act on 13 July 1997 in respect of existing plans such as "Herston Place". Under the transitional provisions of the Act, a building unit plan becomes a "building format plan" under the Land Title Act 1994 (see section 330 of the Act). Section 49C(4) of the Land Title Act 1994 states that :

(4) Except to the extent permitted under directions of the registrar about
the required format for a building format plan of subdivision, the boundary
of a lot created under the plan, and separated from another lot or common
property by a floor, wall or ceiling, must be located at the centre of the
floor, wall or ceiling.

There is nothing recorded on the scheme’s plan to show that the boundaries between lots and the common property exterior land is other than the general provision set out above, that is, the centre point of the boundary walls, floors and ceilings.

An examination of the building units plan reveals that the balcony of Lot 6 is on the middle level of a three story construction and as such, the balcony floor and garage roof in question are entirely within the boundaries of Lot 6 and do not form part of the common property. In accordance with section 120(2) of the Standard Module, the necessary repairs are therefore the responsibility of the owner of the lot.

Section 109(2) of the Standard Module obliges the body corporate to maintain in good condition or in a structurally sound condition certain elements of schemes registered as building format plans of subdivision that are not common property. However, I do not consider the area in question falls into any of those elements mentioned in section 109(2).

Accordingly, I am of the view that it is the owners of lot 6 rather than the body corporate, who are responsible for the cost of repairs to the patio.