No. 9 Port Douglas Road [2006] QBCCMCmr 505 (9 October 2006)

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4871

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

I hereby order that the application for interim orders is dismissed.

The application for final orders remains outstanding. There will be an opportunity for persons likely to be affected by any final orders to provide submissions regarding the application for final orders in due course.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0780-2006

"No. 9 Port Douglas Road" CTS 24368

No. 9 Port Douglas Road Community Titles Scheme (PDR) is an 18 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is described as a warehouse/office/residence converted to an 18 unit complex. Lot boundaries are designated under a building units plan (now known as a building format plan).

This is an application for interim orders seeking to put on hold the proposed tiling of the lot 16 balcony area by the body corporate. It arises out of an application by Tecelec (Qld) Pty Ltd, owner of lot 4 (applicant) seeking final orders to overturn resolution 8 of the extraordinary general meeting of 15 September 2006 that the body corporate perform this tiling and to have an administrator appointed to perform the obligations of the committee.

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

At an extraordinary general meeting on 15 September 2006 the majority of owners voted that the body corporate should replace the tiling on the balcony of lot 16. I understand from the submissions that lot 16 is the penthouse unit and the balcony area of this unit is uncovered so waterproofing for the units below consists of a waterproofing membrane underneath the tiles.

The applicant makes submissions to the effect that the owner of lot 16, Famestock Pty Ltd (respondent) should pay for the tiling itself. It is submitted that the tiles form part of lot 16 and the repair is not body corporate responsibility, particularly as the body corporate has decided not to repair the waterproofing membrane under the tiles but to install new roofing over the scheme instead.

Submissions have been received from the respondent to the effect that the membrane is the responsibility of the body corporate even when it is part of a lot and that an owner is not normally responsible for replacing tiles above a damaged membrane. It is submitted that the tilers report states that the original laying of the tiles and membrane was always faulty due to poor workmanship and the body corporate has approved the tiling to help alleviate the leaking through the slab with the upcoming wet season approaching and prior to the new roof being completed.

The body corporate has also provided submissions and has included photographs showing cracked tiles and evidence of water damage to other parts of the building.

The submissions satisfy me that, if the matter does proceed to final determination, there is a serious legal question to be determined regarding whether it is just and equitable that the body corporate pay for the cost of retiling the lot 16 balcony.

An owner of a lot must maintain their lot in good condition (Accommodation Module, 119(2)). Normally this would mean that a lot owner is responsible for retiling their own balcony. It is no excuse to say that the developer never tiled it properly in the first place. Rather the owner must normally fix the problem and seek any financial redress from the developer.

On the other hand, the body corporate has a responsibility to maintain the roofing membrane in good condition (Accommodation Module, 108(2)(a)(iii)). If damage to tiling was caused by the body corporate performing work on the membrane or the failure of the tiling was caused by a failure of the waterproofing membrane then it might be just and equitable that the body corporate pay for the cost of retiling.

In the present circumstances, the body corporate and respondent appear to be in agreement that retiling is necessary and on the type of retiling that should occur. Alternatively, it might be just and equitable that the cost is split between the owner of lot 16 and the body corporate. However, if the tiling was always defective and there is no evidence that any actions or failures of the body corporate have contributed to the need for retiling then it is arguable that it is not just and equitable that the body corporate pay the cost of retiling. The applicant has therefore raised a serious question for determination about whether the respondent should contribute part or all of the costs of retiling.

The applicant has established some justification for an interim order prohibiting the tiling from proceeding pending a final determination of the dispute.

However, it is possible that the applicant will not succeed in gaining any final orders and it would be inconvenient for the body corporate to be subject to an interim order prohibiting the work if the decision of owners was ultimately allowed to stand.

In particular, there is obviously agreement between the body corporate and the owner of lot 16 that the work needs to be done. There are also submissions to the effect that the tiling is necessary to minimise damage that is likely to be caused when the wet season commences, as early as November. I also note that the applicant failed to lodge their application to stop the work until 25 September 2006 even though the applicant would presumably have had notice of the proposal in August when it was listed as a motion for the upcoming meeting.

In the circumstances, I am not willing to make an interim order preventing the body corporate from performing the retiling. However, if the retiling proceeds then I do wish to put the respondent on notice that a final order may result in a reapportionment of the costs of retiling on a just and equitable basis so that the respondent pays more than just its contribution according to the special levy agreed pursuant to motion 8.

For these reasons, the application for interim orders is dismissed.

The application will be allowed to proceed to submissions and a final determination in the normal course.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

No. 9 Port Douglas Road [2006] QBCCMCmr 505 (9 October 2006)