Eliza Towers [2005] QBCCMCmr 79 (11 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0515-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11052
Name of Scheme:	Eliza Towers
Address of Scheme:	1 Pacific Boulevarde, BUDDINA BEACH QLD 4575

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

Nomex Pty Ltd, the owner of lot 15

I hereby order that the application for orders that: 1. The body corporate to be held responsible for the cost of structural rectification to hobs and sills and replacement of balcony windows to eliminate water penetration or the body corporate be prevented from future expenditure on all repairs to balcony windows ensuring all owners receive equal treatment 2. The body corporate be responsible for replacement of water damaged doors in basement, caused by neglecting to repair membrane within a reasonable time is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0515-2004

"Eliza Towers" CTS 11052

ORDERS SOUGHT:

The applicant, Nomex Pty Ltd, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1. The body corporate to be held responsible for the cost of structural rectification to hobs and sills and replacement of balcony windows to eliminate water penetration or the body corporate be prevented from future expenditure on all repairs to balcony windows ensuring all owners receive equal treatment
2. The body corporate be responsible for replacement of water damaged doors in basement, caused by neglecting to repair membrane within a reasonable time.

JURISDICTION:

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) 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 the 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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

SCHEME DETAILS:

Eliza Towers was registered as a building units plan (now described as a building format plan) on 8 May 1981 and comprises 16 lots and common property. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND:

In the supporting grounds, the applicant stated that the body corporate has, for the past 23 years, accepted full responsibility for the cost of:

a) Maintenance, repair and replacement of all windows in the building including balcony windows
b) Rectification of all water penetration into the building including balcony walls within a lot boundary

The applicant further stated that during 2003 the body corporate committee engaged the services of Grandi-C Pty Ltd to carry out $12,000 worth of repairs to windows of which over half were balcony windows, the type now being excluded by the committee. The applicant further stated that there has been no motion put to owners at a general meeting to change this practice.

The applicant explained how the problem had arisen with the windows, and detailed the manner in which the problem could be rectified. The applicant provided photographs, copies of invoices and quotes, and copies of relevant correspondence.

The body corporate committee and all owners were invited to respond to the application.

A submission was received from the body corporate committee in which it was denied that the body corporate had for the past 23 years accepted responsibility for maintaining repairing and replacing balcony windows or rectifying all water penetration into balcony walls within a lot boundary. The committee explained that in 2003 the body corporate engaged the services of Grandi-C Pty Ltd to inspect and if necessary carry out repairs to windows situated in boundary walls of the scheme building. The committee stated that this work came about because of an earlier incident in which a window located in an external wall came away from its casing and fell to the ground. The committee further stated that it acted promptly to have all windows in the external walls checked to discharge its obligations under section 109(2)(a)(ii) of the Standard Module.

The committee pointed out that during the course of this inspection, some owners requested the contractors to inspect windows contained within the boundary of their lots and if there were safety concerns the owners arranged for necessary repairs to be carried out.

The committee also noted that the applicant had been granted permission by the body corporate in 1988 to "remove all windows in the unit, reseal and reinstate the windows at the owner’s expense" on the conditions specified in the resolution.

As for the louvred doors in the basement, the committee denied that there is a ruptured membrane in the concrete slab as alleged by the applicant, and further denied that the body corporate is in any way responsible for the current condition of the doors.

DETERMINATION:

The doors and windows to which the applicant has referred in the application are located wholly within the applicant’s lot.

Section 109 of the Standard Module provides:

109 Duties of body corporate about common property--Act, s 152

(1) The body corporate must maintain common property in good

condition, including, to the extent that common property is structural in

nature, in a structurally sound condition.

(2) To the extent that lots included in the scheme are created under a

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

(a) maintain in good condition--

(i) railings, parapets and balustrades on (whether precisely, or

for all practical purposes) the boundary of a lot and

common property; and

(ii) doors, windows and associated fittings situated in a

boundary wall separating a lot from common property; (emphasis added) and

(iii) roofing membranes that are not common property but that

provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not

common property in a structurally sound condition--

(i) foundation structures;

(ii) roofing structures providing protection;

(iii) essential supporting framework, including load-bearing

walls.

(3) Despite anything in subsections (1) and (2)--

(a) the body corporate is not responsible for maintaining fixtures or

fittings installed by the occupier of a lot if they were installed for

the occupier’s own benefit; and

(b) the owner of the lot is responsible for maintaining utility

infrastructure, including utility infrastructure situated on

common property, in good order and condition, to the extent that

the utility infrastructure--

(i) relates only to supplying utility services to a particular lot;

and

(ii) is 1 of the following types--

• hot-water systems

• washing machines

• clothes dryers

• another device providing a utility service of to a lot;

and

Examples for subsection (3)(b)--

1. An airconditioning plant is installed on the common property, but

relates only to supplying utility services to a particular lot. The owner

of the lot would be responsible for maintaining the airconditioning

equipment.

2. A hot-water system is installed on the common property, but supplies

water only to a particular lot. The owner of the lot would be

responsible for maintaining the hot-water system and the associated

pipes and wiring.

(c) the owner of the lot is responsible for maintaining the tray of a

shower that services the lot, whether or not the tray forms part of

the lot.

(4) To avoid doubt, it is declared that, despite an obligation the body

corporate may have under subsection (2) to maintain a part of a lot in good

condition or in a structurally sound condition, the body corporate may

recover the prescribed costs, as a debt, from a person (whether or not the

owner of the lot) whose actions cause or contribute to damage or

deterioration of the part of the lot.

(5) In this section--

"prescribed costs" means the proportion of the reasonable cost to the

body corporate of carrying out the maintenance that can, in the body

corporate’s reasonable opinion, be fairly attributed to the person’s

actions.

The applicant’s obligation is to maintain its lot in good condition (section 120(2) – Standard Module). On this basis, therefore, the balcony doors and windows which are situated wholly within the lot must be maintained by the applicant.

I note that the body corporate has reserved its rights to recover from each lot owner the cost of having such windows inspected by Grandi-C Pty Ltd in 2003. If the body corporate does pursue its rights in this regard, then it must ensure that it does so in respect of all owners involved, and not just a select group.

However, as far as the present application is concerned, I do not propose to make the order sought by the applicant. It is not necessary for the body corporate to consider a motion to exclude the balcony doors and windows from any maintenance programme; they are already excluded by the legislation by virtue of their location wholly within the lot.

In relation to the louvred doors, there is no evidence before me apart from the applicant’s assertion, that the damage was caused by a ruptured membrane on the slab between the garage and the common area garden above. I have not been provided with any documentation in relation to the alleged damage, nor any correspondence passing between the parties. The minutes of the committee meeting held on 2 October 1995 reveal that the committee resolved to expend up to $500 to rectify a construction joint problem over the applicant’s car park. At the committee meeting held on 22 January 1996, only 3 1/2 months later, the minutes reveal that the work had been satisfactorily completed for the sum of $450.00. This does not indicate "years of negligence in repairing the leak", as claimed by the applicant. Furthermore, as pointed out by the body corporate committee, the applicant has at no stage made a formal request to the body corporate for the doors to be repaired, and accordingly there is no evidence of a "dispute". In addition, a period of nine years has elapsed since this repair was effected. Such a long period of time brings further considerations of normal wear and tear, which have not been addressed in any way in the material before me.

Finally, the doors are constructed within an area of exclusive use allocated to the applicant. Under section 114(4)(b) of the Standard Module an owner who is authorised to make improvements to the common property for the benefit of their lot must maintain the improvement made under the authority in good condition unless excused by the body corporate. The body corporate committee confirmed that the body corporate had not excused the applicant from this obligation.

I have dismissed the application in its entirety.