La Porte D'Or [2006] QBCCMCmr 128 (16 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0585-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D’Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Hans Franke & Coral Janette Franke, the owners of lot 176

I hereby order that the application by Hans Franke & Coral Janette Franke, the owners of lot 176, for an order that the owners of the lot 181, Damien Parker and Maureen Elizabeth Parker be ordered to pay to the applicants $1000 being the excess on the insurance repair claim for rectification of internal damage to the applicants’ lot, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0585-2005

"La Porte D’Or" CTS 12681

The applicants, Hans Franke & Coral Janette Franke, the owners of lot 176, initially sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

1.	The water leak in unit 3204 be rectified.
2.	The damage caused by the water leak be repaired.
3.	The costs of previous repairs to damage caused by the water leak be repaired.
4.	The costs associated with this application, necessitiated by the Committee’s refusal to take appropriate action, be reimbursed.

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)).

The scheme is a subdivision of 182 lots recorded under a building unit plan of subdivision. The regulation module applying to the scheme is the standard module.

Very late in the application process, and in fact after submissions had closed and the making of a case management recommendation, the applicants wrote to the Office of The Commissioner requesting that the "dispute be held in abeyance". In subsequence correspondence, the applicants stated the leak had ceased and that the cause had been identified "to be within the apartment above ours". The applicants then stated that they "no longer have any claim against the Body Corporate" but "seek a final order in our favour for Mr and Mrs (Parker) to contribute only the required $1000:00 Insurance claim excess payment".

This is the only outstanding question for me to determine: namely whether the owners of the lot (lot 181) above the applicants, Damien Parker and Maureen Elizabeth Parker (Parker) should be ordered to pay to the applicants $1000 being the excess on the insurance repair claim for rectification of internal damage to the applicants lot. Given that this relief was not part of the applicants original requested relief, though I acknowledge that the applicants did name the Parkers as respondents to this application, I sought further submission from Parker on the order belated sought by the applicants. Parker has responded in the following terms:

... as recent owners of the unit we have inherited a problem that existed long before we acquired the unit. Further, the complainant (Mrs Coral Franke) had been aware of this problem for some six or seven years and never once requested the Body Corporate to make an engineering determination of the problem ... despite being secretary of the Body Corporate.

Already it has cost personally us $17000 to fix this problem part of which is the Body Corporate’s because of leaking downpipes as was pointed out in our original submission) and to now have to pay the $1000 we feel is morally unfair.

The basis of the applicants entitlement to relief, if it exists, is section 281 of the Act, 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.
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.

In the circumstances, I am satisfied that the applicants have suffered damage to property because of a contravention of the Act / regulation module, namely failure to repair a lot. The question arises whether Parker, as the owner of the lot, should be ordered to pay the $1000 as sought. It is clear from the terms of the section that the power of the adjudicator to make this order is discretionary, quote:

the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention-- ...
(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.

I intend to dismiss the applicant’s request to be reimbursed the amount of the insurance excess. Whilst Parker is the owner of the lot above from which the leak occurred, Parker only became the owner of that lot in about June 2005. In contrast, the applicants own material attest to the long standing nature of the leak. I am satisfied that Parker, upon become aware of responsibility for the leak, caused necessary and appropriate repairs to prevent its continuation in a timely fashion. There is certainly a strong suggestion that the female applicant, whilst a member of the body corporate committee, failed over an extended period of time to have the body corporate investigate the leak, and further that the applicant’s allegations in their grounds regarding the alleged failings of the present committee are without foundation, given the failure of previous committee’s, of which the applicant was a member, to investigate the matter.

In these circumstances, I consider it would be unfair and unreasonable to order in terms as sought by the applicants, and I intend to dismiss the application in its entirely.

Moreover, I conclude the applicants conduct of this application lacks merit. I consider it very clear in hindsight that many of the applicants allegations vis-à-vis the body corporate are simply incorrect, and were illustrative of a less than objective view of the issue on the part of the applicants. I consider the intemperate and inaccurate nature of some of the applicants allegations to be unfortunate, and suggestive of certain "politics" within the body corporate. Further, given the outcome, one wonders whether the applicants should consider a retraction of certain (perhaps most) of the allegations made, or at least an expression of regret to the body corporate for the manner in which the applicants framed their allegations. In this regard, its is perhaps fortunate for the applicants that I have not been requested by the body corporate to consider the making of an order in terms of section 270(1)(c) of the Act, namely that it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance. If an order under this section is made dismissing an application, then an applicant may be ordered to "compensate the person against whom the application was made for loss resulting from the application". The basis for such an order being made was arguable in my view.