Karadi Court [2006] QBCCMCmr 547 (26 October 2006)

Last Updated: 19 December 2006

REFERENCE: 0663-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6116
Name of Scheme:	Karadi Court
Address of Scheme:	102 Henderson Street, BULIMBA QLD 4171

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

Ms Jennifer Goodger, the owner of lot 6

I hereby order that: 1. The body corporate for "Karadi Court" shall, at its expense, arrange for repairs to be effected in a proper, workmanlike manner to the building plumbing, in accordance with the Ansa Plumbing report dated 22 June 2006. 2. The body corporate shall arrange for the work required by this order to be carried out as soon as practicable and in accordance with the timeframes set down in this order. I further order that within 30 days of the date of this order and for the purposes of determining the scope and cost of the work required by this order, the body corporate shall obtain at least two quotations for the work recommended in the Ansa Plumbing report dated 22 June 2006. I further order that provided the cost of carrying out the work required by this order is above the relevant limit for committee spending as specified by the Standard Module, then within 21 days of receipt of the quotations, the secretary shall call and hold an extraordinary general meeting of the body corporate to authorise the required work, including the fixing of a special contribution, if necessary. I further order that within 2 days after the authorisation of the work required by this order, the body corporate shall engage the selected tradesperson (or tradespersons) to commence the required work as soon as possible. I further order that within one week of the date of this order, the body corporate secretary shall distribute a copy of this order, and the accompanying statement of reasons to each owner of a lot included in the "Karadi Court" community titles scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0663-2006

"Karadi Court" CTS 6116

Scheme

"Karadi Court" was registered as a building unit (now known as building format) plan of subdivision on 7 June 1989 comprising seven lots and common property. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

Application

This application is brought by the owner of lot 6, Jennifer Rose Goodger, against the body corporate, seeking an order that the body corporate pay for and fix the plumbing at Karadi Court.

The applicant includes grounds to the following effect:

• The applicant became the owner/occupier of lot 6 on 25 November 2005. In late May, she had a plumber inspect her shower drains as the shower became blocked and was not draining. The plumber unsuccessfully used an "eel" and advised the applicant that she would need to have a plumber who had a camera to identify and locate the drainage problem.
• After some toing and froing between the applicant and AD Body Corporate (the body corporate managers for the scheme) Ansa Plumbing performed an inspection of the plumbing with a camera but they could not finalise their report until they gained access to lot 3, which is where the main drainage for the lot is located.
• Access to lot 3 was gained on 22 June 2006 and Ansa Plumbing completed their report.
• After numerous attempts, through the body corporate managers, to have rectification work done, the applicant was advised that all details had been forwarded to the committee for action, as the body corporate managers were advisors only.
• Since 3 July 2006, the applicant has had no repairs, inspections or advice regarding what action has been or will be taken to address the report written by Ansa Plumbing on 22 June 2006.
• In a telephone conversation with an administrative officer from this office on 23 October 2006, the applicant confirmed again that no repairs have been carried out and the shower is still unusable.

Submissions

Submissions in response to the application were sought from all owners (excluding the applicant) and the committee. One submission from the owner of lot 7 was received. This owner complains of noise from water running through pipes in the dividing wall between his lot and lot 2, preventing him from getting an uninterrupted night’s sleep. The owner attaches a water consumption advice from the Brisbane City Council which reflects a dramatic increase in the use of water in the complex. Aaron from Ansa Plumbing was stated to have said that this would be symptomatic with a constant outflow of water from the plumbing system and the loud sound of water running through pipes 24 hours a day.

The body corporate did not respond to the application.

Jurisdiction

This is a dispute which falls within the dispute resolution provisions of the Act.^[1]

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)).

Decision

Section 20 of the Act defines utility infrastructure as common property as follows:

20 Utility infrastructure as common property
(1) Common property for a community titles scheme includes all
utility infrastructure forming part of scheme land, except
utility infrastructure--
(a) solely related to supplying utility services to a lot; and
(b) within the boundaries of the lot (according to the way
the boundaries of the lot are defined in the plan of
subdivision under which the lot is created); and
(c) located other than within a boundary structure for the
lot.
(2) However, common property does not include utility
infrastructure positioned within common property if--
(a) its positioning is the subject of an agreement to which
the original owner or the body corporate is a party; and
(b) under the agreement, ownership of the utility
infrastructure does not pass to the original owner or
body corporate.
Example of utility infrastructure for subsection (2)--
Cable television wires positioned in the service shaft of a multistorey
building that is scheme land for a community titles scheme, if the wires
remain in the ownership of a cable television provider.
(3) In this section--
boundary structure, for a lot included in a community titles
scheme, means a floor, wall or ceiling, other than a false
ceiling, in which is located the boundary of the lot with
another lot or common property.

The terms "utility infrastructure" and "utility service" are defined in Schedule 6 of the Act as follows:

utility infrastructure means--
(a) cables, wires, pipes, sewers, drains, ducts, plant and
equipment by which lots or common property are
supplied with utility services; and
(b) a device for measuring the reticulation or supply of a
utility service.

utility service means--
(a) water reticulation or supply; or
(b) gas reticulation or supply; or
(c) electricity supply; or
(d) air conditioning; or
(e) a telephone service; or
(f) a computer data or television service; or
(g) a sewer system; or
(h) drainage; or
(i) a system for the removal or disposal of garbage or
waste; or
(j) another system or service designed to improve the
amenity, or enhance the enjoyment, of lots or common
property.

The Ansa Plumbing report satisfies me that the items requiring repair are common property utility infrastructure within the terms of section 20 of the Act. In particular, I note the following:

• "Found shower blocked from trap and collapsed drain below shower base under slab."
• "Observed cracks in chamber entries from most fixtures in bathroom from Units 3 & 4. Also found cracks in outlet branch in chamber."
• "Observed collapsed branch to shower for Unit 6 (collapsed immediately from chamber to shower)."
• "This is causing severe leaking to earth below slab. There are severe leaks visible below retaining wall under building in the service space."

The body corporate is responsible for maintaining common property utility infrastructure in good condition, under the terms of section 109(1) of the Standard Module.^[2] I believe that failing to act on the report provided by Ansa Plumbing constitutes a failure by the body corporate to fulfil this legislative obligation. The Ansa Plumbing report reveals serious issues that I believe require the body corporate’s immediate consideration. I am concerned that more than three months have elapsed since the Ansa Plumbing report was provided to the body corporate and still, no action has been taken. Moreover, I am concerned by the lack of response to this application in the form of a submission by the body corporate.

Order

In the circumstances, I have ordered in the applicant’s favour.

I have also required the body corporate secretary to distribute this order and statement of reasons to each of the owners of a lot included in the scheme. Owners should be aware that this order requires the body corporate to arrange for suitable repairs to the plumbing, in accordance with its legislative responsibilities. The meeting required by this order is simply for the purposes of allowing the body corporate to decide who to engage to carry out the work, and raise the necessary funds if existing funds are insufficient. It should not be seen by owners as an opportunity for the body corporate to defer or decline to incur the expense of carrying out the required repairs to the plumbing.

Should the body corporate fail to take prompt and reasonable steps towards rectifying the plumbing, the applicant is entitled to take action through the Magistrate’s Court for the purpose of enforcing this order.

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^[1] See ss.226, 227 and 228 Act
^[2] The exclusion in section 109(3)(b) is not applicable here.