Hibbertia [2006] QBCCMCmr 23 (18 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0685-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11053
Name of Scheme:	Hibbertia
Address of Scheme:	170 Bardon Avenue BURLEIGH WATERS QLD 4220

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

Frederick George Butt & Sylvia Rose Butt, the owners of lot 12

I hereby order that the application by Frederick George Butt & Sylvia Rose Butt, the owners of lot 12, for an order for the refund of moneys expended by them for repairs to roofing structures providing essential support in the sum of $1285, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0685-2005

"Hibbertia" CTS 11053

The applicant, Frederick George Butt & Sylvia Rose Butt, the owners of lot 12, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Refund of moneys expended for repairs to roofing structures providing essential support as detailed in attached builders report, in the sum of $1285.

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 13 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 for reimbursement of moneys expended by the applicants on roof, or more correctly, ceiling repairs. The applicants allege that the amount paid by them should be reimbursed by the body corporate for the reason that the repairs were the result of structural defects or damage. The applicants conclude their grounds with the statement:

Our builder is firmly of the opinion that it was a structural problem and will provide any further details you need.

The body corporate has denied responsibility, and states that based on an inspection report provided to it by the applicants, the problem was one of "sagging ceilings". The Discovery Building Report of June 9 2005, commissioned by a prospective purchaser of the applicant’s lot, stated relevantly, in respect of the ceilings for Bedrooms One and Two, the lounge room, the dining room and the kitchen that:

The condition of the ceilings is generally poor. Sagging was noted to the ceiling lining. This may be the result of lack of adhesion to joists and refixing is advised.

The applicants engaged a tradesperson to undertake the stated repair. That invoice states:

Re-securing all ceilings. Patched, Repaired and repainted all ceilings. All ceilings had sagged due to furing channel not being fixed to truss cord bottoms as per manufacturer’s spec. Furing channel was nailed in the centre with 50 mm gal. nails penetrating only 20 mm into truss cord instead of being screwed fixed through the flange on either side of the channel. Truss cords and furing channel form part of roof structure to which gyprock was fixed. ...

Section 109 of the standard module sets out the body corporate’s responsibilities in respect of common property, and also those areas of lots which are not common property but which are specifically stated to be the responsibility of the body corporate. Section 109 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; 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 applicants have referred specifically to the provisions of section 109(2)(b). Clearly they do not allege that the ceiling is part of the common property. Rather, they allege that the repairs in question related to "roofing structures providing essential support as detailed in attached builders report". This is a reference to section 109(2)(b) which states:
(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.

The applicants have referred to an amalgam of the two concepts referred to. They claim that the repairs were to a roof structure providing essential support.

Firstly, what I understand has "sagged" is not any part of the structural support beams in the ceiling, but rather, the lining or plasterwork. The boundary of a lot with common property is defined as the centre of the relevant wall, floor or ceiling. Clearly, the lining or plasterwork is within the applicants lot and not part of the common property. Is the lining or plasterwork part of the roofing structure? No, clearly it is not. A lining is there for aesthetics. It serves no structural purpose. Rather it is the beams or trusses within the ceiling which might be referred to as the roofing structure, supporting both the roof above and the lining below. The fact that the lining was not properly secured by the original builder, whilst possibly a building defect, it is not a structural defect for which the body corporate is responsible.

The second aspect is "providing essential support". The full reference in the section is to "essential supporting framework, including load bearing walls". The ceiling lining is not "essential supporting framework" in any sense in which that phrase was intended.

I conclude that the repairs undertaken by the applicants were properly repairs which the applicants were obliged to undertake in accordance with their obligation to maintain their lot in good condition. Section 120 of the Standard Module which provides:

120 Obligations of owners and occupiers--Act, s 160
(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.
(2) The owner of a lot included in the scheme must maintain the lot in good condition.
(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.
(5) This section applies only to a lot that is not a community titles scheme.

Accordingly I have dismissed this application.