Atlantis West [2006] QBCCMCmr 63 (13 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0715-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8790
Name of Scheme:	Atlantis West
Address of Scheme:	2 Admiralty Drive PARADISE WATERS QLD 4217

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

Gunter Berhart and Helga Berhart, the co-owners of lot 123

I hereby order that the application for an order that the body corporate engage a competent technician to rectify the water hammer affecting the applicants’ lot, is dismissed, on the basis that such water hammer has now been rectified.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0715-2005

"Atlantis West" CTS 8790

ORDER SOUGHT

The applicants have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the body corporate engage a competent technician to rectify the water hammer affecting the applicants’ lot.

JURISDICTION

The application evidences a dispute between the owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).

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)).

BACKGROUND

Submissions were sought from all owners and from the body corporate committee. Several owners confirmed the existence of a water hammer within the scheme. In his submission dated 9 November 2005 the body corporate chairperson provided details of the steps taken by the body corporate committee to rectify the problem. Those steps included the installation of new pressure control valves on 9 November 2005.

In their reply dated 19 November 2005, the applicants stated that although remedial work had been carried out, it had not rectified the problem.

On 9 February 2006, a member of the Commissioner’s staff telephoned one of the applicants, Mr Berhart, who stated that the water hammer ceased on 26 December 2005. Mr Berhart further stated that he had informed the body corporate committee.

DETERMINATION

The body corporate has on obligation to maintain common property, including utility infrastructure, in good condition. The evidence reveals that the body corporate undertook its responsibilities, and attended to the problem of which the applicants complained. The problem has now been resolved.

In these circumstances, the application has been overtaken by events, and I have therefore dismissed it.