Jilgar Court [2005] QBCCMCmr 449 (12 August 2005)

Number of Scheme:	14461
Name of Scheme:	Jilgar Court
Address of Scheme:	70 Liverpool Road CLAYFIELD QLD 4011

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Michael Manwaring, the owner of Lot 3

I hereby order that the application for an order by Michael Manwaring, the owner of Lot 3 that, quote:

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0090-2005

"Jilgar Court" CTS 14461

APPLICATION

This application is by Michael Manwaring, the owner of Lot 3 (applicant) against Irene Lubarski, the owner of Lot 8 (respondent). The applicant is seeking, quote:

An order that the owner of unit 8 supply to the Body Corporate an independant structual engineers report certifying that the renovations that have been to this unit have not effected the structual integrity of Jilgar Court along with an independant wet seal certificate that shows all specifications have been met and if this criteria is not forth coming that the unit be returned to its former design.

JURISDICTION

"Jilgar Court" Community Titles Scheme 14461 is an eight lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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:

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the respondent and to the body corporate secretary for distribution to the owner of each lot (excluding the applicant and the respondent) and the committee. A submission was received from the respondent and a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

DETERMINATION

The applicant’s main submissions were to the effect that:

The owners of Lots 2, 6 and 7 support the application. The owner of Lot 4 opposed the application.

The body corporate’s general functions include reasonably administering common property for the benefit of lot owners (section 94, Act). The body corporate must administer, manage and control common property reasonably and for the benefit of lot owners (section 152, Act). The body corporate may make by-laws regulating the use and enjoyment of a lot included in the scheme (section 169, Act). The owner of a lot in a scheme has an obligation to maintain the lot in good condition (section 120, Standard Module). The owner of a lot has a right to carry out work in that person’s lot provided, for example, the work is limited to the lot and does not affect common property; the work is not subject to a by-law for the scheme; the work does not interfere with the support or shelter provided by the lot (section 165, Act), the work does not interfere with utility infrastructure or utility services (section 166, Act); or the work does not cause a nuisance or hazard (section 167, Act).

The basis of the argument provided by the applicant and the owners supporting the application is that alterations have been made to Lot 8, and that as a consequence there may be some effect on the structural integrity of the building, and there may be an issue with the adequacy of the waterproofing effected to the Lot. There has been no submission that the respondent has had work carried out on common property. Further, the body corporate has not made a by-law for the scheme regulating the making of alterations to lots in the scheme. Consequently, as the work was carried within Lot 8, it is not evident that the respondent was not required by the Act or the Standard Module to obtain body corporate approval to carry out the work.

Even though the alterations to Lot 8 was made approximately three years ago, neither the applicant nor other lot owners have demonstrated that the alterations have had a consequential effect on the structural integrity of the building or another part of scheme land, or that there has been a consequential water penetration problem. In my opinion, the respondent should only be compelled to provide the reports required by the applicant if it is reasonable in all the circumstances for such investigations to be conducted.

I understand that the applicant and a number of lot owners are concerned about the longer term ramifications of the work carried out in Lot 8. However, there has been no material submitted indicating that a wall has been removed which is load-bearing or otherwise structural in nature, or that a wall which has been removed has adversely affected the structural integrity of the building. Nor has material been submitted indicating that there is a consequential water penetration problem. While I am not reaching a finding with respect to the possible adverse effect of the work carried out in Lot 8, I do not consider that there currently is a reasonable basis to require to respondent to have a structural engineer and any other qualified person to conduct the investigations specified by the applicant. The applicant has also made mention that the work has breached the code of the Queensland Master Builders Association, or a breach of the legislation managed by the Building Services Authority. This is a matter to be pursued in the relevant jurisdiction and is not a matter for determination under this dispute resolution process.
The applicant has also mentioned the possible adverse impacts of the work on the body corporate insurance policy. However, the applicant has not submitted any material from the insurer expressing a concern or otherwise with respect to the alterations made to the lot. Therefore, I do not consider this to be a reasonable ground to warrant the making of the outcome sought.

Therefore, I have dismissed the application.

While the applicant has not at this stage demonstrated a reasonable basis for requiring the respondent to provide information to the body corporate, it is clear that members of the body corporate do not know whether the work was structural in nature or that the appropriate work was carried out to seal the lot. The respondent should note that she or any future owner of Lot 8 may be responsible for any damage to a lot in the scheme or to any other part of scheme land should that damage be attributable to the alterations which have been made to Lot 8. The respondent should also note the legislative obligations imposed by sections 165 to 167 of the Act which state, quote:

The occupier of a lot included in a community titles scheme must not interfere, or permit interference, with support or shelter provided by the lot for another lot included in, or the common property for, the scheme.

The occupier of a lot included in a community titles scheme must not, either within or outside the lot, interfere, or permit interference, with utility infrastructure or utility services in a way that may affect the supply of utility services to another lot included in, or the common property for, the scheme.

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

The applicant has referred to section 109(2)(b) of the Standard Module which obligates the body corporate to maintain foundation structures, roofing structures providing protection, and essential supporting framework including load-bearing walls in a structurally sound condition. While the body corporate has this obligation, the responsibility to carry out any future rectification may be subject to the determined cause of the structural defect, which may include requiring a lot owner to carry out the necessary work. The body corporate and the respondent should note the provisions of section 121 and 122 of the Standard Module which state, quote:

121 Body corporate may carry out work required of owners and occupiers--Act, s 161

(1) This section applies if the owner or occupier of a lot included in the scheme does not carry out work that the owner or occupier has an obligation to carry out under--

(a) a provision of the Act or this regulation, including a provision requiring an owner or occupier to maintain a lot included in the scheme; or

(2) The body corporate may carry out the work, and may recover the reasonable cost of carrying out work from the owner of the lot as a debt.

122 Body corporate’s power to take action to remedy defective building work--Act, s 162

(1) If building work carried out for the owner of a lot included in the scheme is defective, the body corporate may bring a proceeding under the Queensland Building Services Authority Act 1991 or another law to have the defect remedied.

(2) If a body corporate brings a proceeding under this section, the body corporate is subrogated to the contractual and other rights of the person for whom the building work was carried out.

Section 281 provides a right for a dispute regarding damage to property to be considered under the dispute resolution provisions of the Act. Section 281 states, quote:

281 Order to repair damage or reimburse amount paid for carrying out repairs

(1) If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention--

(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or

(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.

A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition, the adjudicator could, on application of the lot’s owner, order the body corporate to have the damage repaired or to pay an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.

(a) for an order under subsection (1)(a)--the cost of carrying out the repairs is more than $75 000; or

(b) for an order made under subsection (1)(b)--the amount fixed by the adjudicator would be more than $10 000.

(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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Jilgar Court [2005] QBCCMCmr 449 (12 August 2005)