Asten Court [2005] QBCCMCmr 68 (8 February 2005)

Number of Scheme:	14314
Name of Scheme:	Asten Court
Address of Scheme:	39 Albatross Avenue MERMAID BEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mark Wells the occupier of a lot

I hereby order that the application by Mark Wells, the (then) occupier of a lot in the scheme, for an order for "full indemnity for the losses I have suffered" being a total claim of $4576.60, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0651-2004

"Asten Court" CTS 14314

The applicant, Mark Wells, the (then) occupier of a lot in the scheme, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) for "full indemnity for the losses I have suffered". The applicant’s total claim is for $4576.60 being $3922.50 (property and related losses), interest of $631.50 and an application lodgement fee of $22.60. The losses include:

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 a claim by the applicant, as a then occupier of a lot in the scheme, for compensation arising from a burst or at least leaking pipe. The facts associated with the burst or leaking pipe are not in dispute as such. The pipe has since been repaired. The application seeks an award of costs to cover alleged property and other damage suffered by the applicant. The claim is more fully set out in the application, and I do not intend to restate it here.

The applicant appears be making a claim based on section 281 of the Act although this section is not referred to. That section provides:

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.
Example--
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.
(2) The order can not be made if--
(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.

Alternatively, perhaps the applicant’s claim is based on my jurisdiction to make orders which are just and equitable for the resolution of a dispute (section 276).

The body corporate has responded to the application by way of a submission. The body corporate seeks to avoid liability for the applicant’s claim essentially on the basis that it submits that the applicant should have maintained contents insurance, under which a claim for the losses sustained could have been made. In this regard, the body corporate’s own insurance did not cover the applicant’s contents as those contents "are not classed as common". Moreover, the body corporate has submitted that –

The applicant has replied to the submission of the body corporate. Noting that the body corporate submission is two type written pages, together with some annexures, I find it extraordinary that the applicant has managed to magnify the issues to some 13 type written pages, but still manage to conclude that he was "merely seek(ing) to respond to the submission and do(es) not seek to raise or canvass new materials in this response". Much of the applicant reply is, relative to the dispute, simple a gross misinterpretation of the body corporate’s submission. For example, the allegation in para 7.1 of the reply that the body corporate had suggested in its submission that he had "in someway neglected my children". No reasonable person would interpret the body corporate submission as implying this. This is but one of several instances which the applicant’s reply is both overstated and exaggerated. In other instances, the reply is simply wrong, and misinterprets the body corporate’s submission. For example, the following statement (at 6:1 of the reply):

This statement is a nonsense. If it is to have any meaning at all, then it seems to me that the applicant is trying to hedge his bets. The applicant seeks to align himself to whatever interpretation I adopt. I conclude however that the applicant has simply, and completely, misinterpreted the body corporate’s statements. The applicant interprets the body corporate submission as referring to claims in his application. However, what the body corporate is in fact referring to is claims made by the applicant against the body corporate. The allegation is that the applicant originally claimed only the computer, laundering, and the play station, and that it was not until this application was made that the applicant included additional claims for cleaning, books, collector cards and board games. The implication is twofold, that the applicant’s claim has increased with the passing of time, and further, that all claims should have been available to the body corporate at the time of submitting its claim to the body corporate insurer, such that the full claim (albeit subsequently rejected) could have been included with that insurance claim. This interpretation, though totally lost on the applicant, is abundantly clear from the body corporate’s statement quoted above.

This in itself raises the further question, never addressed by the applicant, of why it took the applicant so long to make this application. The application was received here on 1 November 2004. The incident occurred in May 2003, and the body corporate submission states that "the matter was closed on 19 September 2003 and no further contact was made by Mark Wells or Carol Carton".

I intend to dismiss this application. I consider a claim based on section 281 of the Act cannot be sustained. Under that section, I must be satisfied that -

I consider it reasonable to conclude that the intent of the section is directed to real property rather than personal property. The damage alleged by the applicant is to personal property or chattels. However, even if this interpretation is not correct, or unnecessarily narrow, there must also have been a contravention of the Act or community management statement. It is not disputed that the body corporate has a duty to maintain common property (including most utility infrastructure "in good condition". The applicant alleges that the plumber "felt the failure to maintain or alternatively the negligent maintenance by the body corporate of the water pipe caused the pipe to leak". No further elaboration of this is provided. This statement reflects in my view the applicant’s oft position of having a two way bet. In my view, it is unlikely in my view that a tradesperson would make such a statement which goes beyond merely a statement of the cause of the leak, to a determination of responsibility for repair. It is contested by the body corporate by way of statutory declarations from both plumbers that any such statement was in fact made. I prefer the evidence of the body corporate on this aspect and suggest that the applicant’s version is not reliable.

It is not disputed that the leaking pipe was contained in a wall cavity. The photographic evidence, which is not disputed, indicates that 4 bricks (possibly more) had to be removed from the wall in order to access the pipe in question, and further, that the pipe in question is run between two brick walls. Evidence generally suggests that the building is an older building. In the circumstances, what is a reasonable expectation of the body corporate’s duty to maintain common property in good condition. The body corporate has disputed that it failed to maintain the property, referring to several instances of proactive maintenance of common property. The applicant’s expectation is that the body corporate should have repaired the pipe prior to it leaking. To achieve this, presumably the body corporate should have carried out preventative maintenance of every pipe in the building. Given the pipe is embedded in cavity brick walls, this is an enormous undertaking, and I suggest not cost effective when compared with the alternative of repair once a leak is detected, with potentially some rectification work or repairs to the adjacent area.

In the circumstances, I do not accept that the body corporate has contravened the Act in its duty to maintain the common property. I conclude that the body corporate’s response to the requirement of repair of the pipe, when the leak became known, was wholly appropriate, and I note that the applicant has not alleged any failure to respond by the body corporate after being notified.

In my view, there is no basis for any order to be made under section 281 of the Act. I further conclude that there is no basis generally for an order for payment of compensation to the applicant. I agree with the body corporate that the appropriate remedy in the circumstances would have been for the applicant to have claimed under a contents insurance policy. I note that the applicant failed to take out such insurance. I conclude that this then was a risk that the applicant took upon himself, and for which he is not now entitled to be indemnified by the body corporate. This application is dismissed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Asten Court [2005] QBCCMCmr 68 (8 February 2005)