Gemini Court [2006] QBCCMCmr 184 (11 April 2006)

Last Updated: 19 December 2006

REFERENCE: 0804-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9731
Name of Scheme:	Gemini Court
Address of Scheme:	Hayne Street BURLEIGH HEADS QLD 4220

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

Lance Vane Lansell and Audrey Graham Lansell, the co-owners of lot 129

I hereby order that the application by Lance Vane Lansell and Audrey Graham Lansell, the co-owners of lot 129 (the applicants) for orders quote: 1. That the body corporate be ordered to install additional spitters to the upper level V of lot 129 in accordance with the recommendations made to the body corporate by the Body Corporate’s Consulting Engineer, Kavanaugh Consulting Engineers Pty Ltd in their letter dated 8 September 2005. 2. In the alternative, that the body corporate be ordered to put the issue of the recommendations made to the body corporate by the body corporate’s consulting engineer, Kavanaugh Consulting Engineers Pty Ltd in their letter dated 8 September 2005, to an EGM at the earliest possible time. 3. That the body corproate be ordered to complete the unfinished repair work, excluding the replacement of the tiles at the doorway to the upper level V of lot 129. 4. That the body corporate be ordered to redirect water entering level V of lot 129 from the common property area. 5. Such further or other orders as necessary, is dismissed. I further order that the applicants shall, within two (2) months of the date of this order • at their cost, and • without damage to the water proofing membrane installed by the body corporate, and other repairs undertaken the body corporate (which the applicants shall be responsible to indemnify the body corporate should they cause damage to) removal the flooring surface installed by them. I further order that if the applicants thereafter choose to re-install another flooring surface, then in so doing, the applicants shall comply with the requirement of the previous order; namely that the level of any wearing surface which might subsequently be installed shall be below the height of the new over-flashing detail installed at the perimeter wall etc by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0804-2005

"Gemini Court" CTS 9731

The applicants, Lance Vane Lansell and Audrey Graham Lansell, the co-owners of lot 129, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

The applicant seeks the following orders:

1. That the body corporate be ordered to install additional spitters to the upper level V of lot 129 in accordance with the recommendations made to the body corporate by the Body Corporate’s Consulting Engineer, Kavanaugh Consulting Engineers Pty Ltd in their letter dated 8 September 2005.
2. In the alternative, that the body corporate be ordered to put the issue of the recommendations made to the body corporate by the body corporate’s consulting engineer, Kavanaugh Consulting Engineers Pty Ltd in their letter dated 8 September 2005, to an EGM at the earliest possible time.
3. That the body corproate be ordered to complete the unfinished repair work, excluding the replacement of the tiles at the doorway to the upper level V of lot 129.
4. That the body corporate be ordered to redirect water entering level V of lot 129 from the common property area.
5. Such further or other orders as necessary.

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

Though the material before me is considerable, this determination will not be a lengthy one. The facts of this matter are not in dispute and I do not consider the issue raised by the application is complex or difficult. The issue of water penetration to the applicant’s lot has previously been the subject of an application to this office. To explain the position of the applicant’s lot, I quote from that original order (363 of 2000)

The applicants are the owners of lot 129. Lot 129 is located on levels U and V of the building. The lower level (U) contains 267m2, which includes most of the living areas and habitable space for the lot. The upper level (V) is smaller in area (170m2), and contains some service and covered areas, but is mostly open space roof terrace. The floor of the opened spaced area of the lot provides the roof for the lower level of lot 129, and indeed the building. This area is open to the weather for the most part. Those areas of lot 129 on level V that are not open space have there own roof, and there has been no suggestion that this roofing is not operating effectively.

In application 363 of 2000, the body corporate was ordered to effect certain repairs to the lot, quote:

RA MeekI hereby order that within three (3) months of the date of this order, the body corporate shall, at its expense –

a)	Completely remove the existing tiles, adhesive, acrylic membrane and original tar urethane membrane, and improvements (if any remaining) from the whole of the roof terrace located on level V of lot 129;
b)	Prepare the exposed concrete substrate and apply a high quality membrane system (ensuring compatibility with tar / urethane residue not able to be removed from the concrete substrata;
c)	Install the new membrane with attention to correct detailing at all abutments, penetrations, outlets etc. so as to achieve a completely waterproof installation;
d)	Install a new over-flashing detail at the perimeter turn up including integration with wall cavity flashing, and door sill flashing etc, above the level of any wearing surface which might subsequently be installed;
e)	Locate and treat all cracks and moving joints in the walls and parapets with a suitable polyurethane sealant.

I further order that within a reasonable period after the repair of the membrane, the body corporate shall, at its expense, repair all internal damage to level U of lot 129.

I further order that Lance Vane Lansell and Audrey Graham Lansell, the owners of lot 129, shall allow reasonable access at all times to the body corporate, its employees, agents and contractors so as to allow the repairs to be undertaken and completed PROVIDED THAT the body corporate shall ensure that the repairs are undertaken in a professional manner, using proper materials and with as minimal interruption to the owners as reasonably possible.

Essentially, the body corporate was ordered, at its cost, to replace the water proofing membrane on the roof terrace of level V of the applicant’s lot. Thereafter, the applicants, at their cost, were at liberty to replace the floor surface on which the membrane had been laid, being careful not to damage the membrane in any way. In this regard, I noted in the reasons for my order:

Consequently, I suggest that the installation of any future floor covering or surface by the owners should be done in consultation with the body corporate, and in accordance with advice received from the manufacturer or installer of the membrane as to how the membrane should be treated or dealt with.

What is in dispute now, following at least one further instance of water penetration to the lot, is how the issue of future potential water penetration should be addressed. The applicants are seeking an order that the body corporate be required to install additional spitters. The applicants allege that this recommendation was made to the body corporate by its own consulting engineer, Kavanaugh Consulting Engineers Pty Ltd (KCE). The applicants further advise that their own engineering expert, Burchill Partners, recommend this course of action.

It seems to me that the applicants have cherry picked from the KCE report the bit they want (namely the installation of the overflow spitters) and appear to largely ignore the reports findings as to the cause of the water penetration of the lot, or its other recommendations for prevention of future penetration. I quote from the report as follows:

In view of the above and the substantial rainfall that was experienced, the roof area drainage outlets, being mostly blocked due to them being covered by stones or sandstock pavers, failed to remove the accumulated waters. The water backed up to above the sliding door sill and the internal floor state tiles and freely flowed down the stairs, into the adjoining wall spaces and into the living room areas below. ...

... Our review of the waterproofing works carried out suggests that no deficiency in these works had contributed to the flooding observed. We are therefore satisfied that the flooding had resulted from blockage of the external deck drainage outlets and overtopping of the internal floor slate tiles and into the unit.

... Now that the contract works are completed, in particular the wall and door sealing and opening up of the deck drainage outlets, we are satisfied that the drainage and waterproofing of the deck is as best as can be achieved with the existing sandstone paving remaining. An obvious improvement would be the removal of the external paving or raising the internal floor level and both the sliding door and stair side window sill by the height of the sandstone paving above the external slab surface levels. A further improvement would be to incorporate more overflow spitters, so located to ensure excess water levels do not exceed the internal floor or window sill waterproof membrane level. ...

The report by Burchill Partners Pty Ltd (BP) does support the proposition for the overflow spitters. However, I am not satisfied that any weight or preference should be given to this report. Firstly, it is a report commissioned by the applicants, obviously for their purposes. It is implicit in the report that BP was directed specifically to the issue of the installation of spitters. There is no evidence that BP were invited to consider other alternatives, including those raised by KCE, or even to inspect the lot for the purposes of compiling the report. BP state that it is responding to "your correspondence". Further, the BP report explicitly acknowledges that "the current state of the drainage system has proven to be adequate during the intensely heavy rain conditions experienced on the Gold Coast on 30 July 2005". Finally, its recommendation for the installation of additional spitters is premised "in order to cater for the worst possible combination of events".

I do not intend to consider the competing arguments for the applicant and the body corporate. Generally I accept the submissions of the respondent Body Corporate in preference to those of the applicants. I consider that the applicants’ submissions are to a large extent a denial of the findings of the KCE report, a report which I accept as being accurate in its assessment of the situation. Moreover, I conclude that the applicants are acting unreasonably. This is particularly so in light of their reply, which seeks to suggest that the body corporate was complicit in the selection of the surface installed by the applicants, and should now be responsible for the costs of removal and replacement of the same. I intend to dismiss the application in its entirely. In the present circumstances, there is no reasonable basis for the orders as sought.

The more relevant question I consider is whether the applicants should be ordered, at their expense, to remove the external paving or flooring or to raise the internal floor level etc by the height of the paving in accordance with the recommendations of the KCE report. I consider that the applicants have caused the problem of which they now complain by the installation of the flooring surface. The order in 363 of 2000, though directed to the body corporate, specifically stated:

d) Install a new over-flashing detail at the perimeter turn up including integration with wall cavity flashing, and door sill flashing etc, above the level of any wearing surface which might subsequently be installed.

In the KCE report of 5 October, 2004, under the heading "point 3" it is stated:

Mr Lansell states that the adjudications order ... has not been carried out. ... If it can be demonstrated that the adjudicator was aware of the proposed sandstone pavers and their final level, then it would be agreed that the order has not been complied with. Otherwise, the owners should have ensured that the final paving level did not go higher than the flashing level. This last alternative would then make the matter a responsibility of the owners and not part of the Adjudicator’s order.

At the time of making of the first order, I was not aware of the type of flooring surface the applicants intended to install. I agree completely, consistent with the finding of the KCE report, that the owners were under an obligation, in selecting and installing the floor surface, that the level of that floor surface should not be above the height of the "over-flashing detail at the perimeter turn up including integration with wall cavity flashing, and door sill flashing etc".

In this respect, I conclude that the applicants have acted contrary to the requirements of the order imposed on the body corporate, and in doing so, have created a situation that now has potential to cause future damage to their lot and potentially other lots and common property through water penetration. In the circumstances, I conclude the applicants should be ordered, within two (2) months of the date of this order, at their cost, and without damage to the water proofing membrane installed by the body corporate, and other repairs undertaken the body corporate (which the applicants shall be responsible to indemnify the body corporate should they cause damage to) to removal the flooring surface installed by them, and if the applicants thereafter choose to install another flooring surface, then in so doing, the applicants shall be ordered to comply with the requirement of the previous order; namely that the level of any wearing surface which might subsequently be installed shall be below the height of the new over-flashing detail at the perimeter installed by the body corporate.