Miami Beach Apartments [2006] QBCCMCmr 68 (15 February 2006)

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

I hereby order as follows-

1. that the body corporate committee shall, within 21 days of the date of this order obtain at least two quotations, of which the quotations provided by the applicant shall be one, for the following works:-
a) repair of the entrance door to Lot 10;
b) repair/replacement of ceilings in Lot 10 including reinstatement of electrical wiring if necessary, removal of asbestos dust if necessary and skip bin hire;
c) repainting and resealing of new ceilings in Lot 10;
2. that the body corporate committee shall within 21 days of the date of this order agree with the applicant on a suitably qualified person to inspect the roof battens above Lot 10, and failing agreement, shall ask R&S Trading Pty Ltd to inspect the roof battens above Lot 10, and that the inspector’s fee shall be paid for by the parties as to 87.5% body corporate and 12.5% the applicant;
3. that the inspection of the ceiling battens shall be at a time convenient to and made known to the applicant, and may be via Lot 10;
4. that in the event that the battens are found to have deteriorated through rainwater damage the applicant may request that the body corporate repair and/or replace such battens, and the body corporate shall thereafter within 21 days of the applicant’s request obtain at least two quotations for remedial work to the battens, and the cost of such repair/replacement shall be met as to 12.5% by the applicant, 87.5% by the body corporate;
5. that within 10 days of receiving all quotations, the committee shall convene a committee meeting to decide on the preferred contractors for the work. The body corporate shall pay 75% of all repair work as detailed in the decisions for this order with the exception of the ceiling battens for which the body corporate shall pay 87.5% ;
6. that the work shall be commenced as soon as possible thereafter and be carried out expeditiously;
7. that the body corporate shall pay the associated costs of repairs as follows:-

a) a maximum of $250 per week being 75% of the applicant’s temporary accommodation during the repairs;
b) 75% of the applicant’s furniture removal and redelivery fees whilst the repair work takes place based on a quotation of $1,013 by Gold Crest Removals, and $170 for furniture storage per calendar month based on a quotation from Storage King Miami;

8. that in the event of the body corporate insurers failing to meet the cost of the painting and resealing of the ceilings that the body corporate and the applicant shall pay for painting and resealing as to 75% body corporate and 25% the applicant.

9. that the application for an order for the applicant’s legal fees is hereby dismissed;

10. that the additional application for an order for the applicant’s storage fees of certain white goods as yet undelivered is dismissed;

11. that the application for an order for " full electrical reinstatement" as a revised quote at $450 is dismissed. However, the applicant’s electrician may wish to, and shall be so permitted by the body corporate, to work with the preferred contractor at the time of repair of the ceilings.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0689-2005

"Miami Beach Apartments" CTS 3192

APPLICATION

This is an application dated 27^th September 2005 by Stephanie Lawson (the applicant) owner of Lot 10 against the body corporate for the scheme (the body corporate) for an order that in respect of Lot 10, the body corporate pay to the applicant the cost of the following:-

The applicant also sought an order that the southern building of the two-building complex be re-roofed by the body corporate prior to the repairs she was proposing to undertake..

After the applicant filed her application, the body corporate put a new colorbond roof on the Southern building on 28^th October 2005. On 18^th January 2005, I wrote to the applicant with copy to the body corporate, to ascertain what outcomes sought remained outstanding. It follows that the order that the body corporate re-roof the Southern building is now redundant. I am advised that all other matters remain outstanding.

JURISDICTION

Miami Beach Apartments CTS 3192 is a Community Title Scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module). There are 27 lots in the scheme created under a Building Unit Plan of subdivision.

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

(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)).

On seeking further information from the applicant, the applicant added to her claim her solicitor’s bill of $518.98. There is no authority in an adjudicator to be able to award costs except for in specific circumstances specified in the Act. I therefore dismiss this part of the claim for want of jurisdiction.

SUBMISSIONS

The applicant has a Lot on the top floor of a scheme consisting of two three-storey buildings which were built 40 – 45 years ago and known as "southern" and "northern" building respectively. She purchased the Lot in June 2001 and had a pre-purchase inspection carried out on 23^rd May 2001 by Mark Stapleton and Associates Pty Ltd. At that time the ceilings were described as " in reasonable condition."

The applicant says that her ceilings and the fabric of her Lot have become damaged through the neglect of the body corporate in allowing the exterior asbestos roof to deteriorate and water to seep through it over a number of years. The applicant did not move into the Lot until 31st January 2004. The applicant says that "when I returned to live in my apartment I realized that the ceilings were not on good condition." Her aim was to renovate and sell, but all the trades advice she garnered was not to decorate until the roof had been fixed. In December 2004, the Gold Coast suffered severe storms and the ceilings were further damaged.

The applicant contends that the body corporate has been aware for a long time that the roof above her unit was in need or repair or replacement, yet did nothing.

The applicant was invited to the Annual General Meeting of 2001. She noted at that meeting that there was a motion about town planning approval for the building and became aware that some owners wanted to redevelop the site, and that there was a concern about the high maintenance of the aging building. The AGM of 2001 also approved the minutes for the AGM of 2000. Those minutes showed that the body corporate approved $10,000 for the purpose of engaging an expert to assist in the preparation of a proposal for redevelopment and that the body corporate had been looking at the viability of redeveloping the site for 4 years,

The agenda of committee meetings were sent to the applicant as a new lot owner. On 2nd February 2002, the applicant noted that there was an item :" Urgent roof repairs – to roof south building. Roof replacement cost". No action resulted from this item.

Despite the urgency attributed to the roof repairs, the matter was not raised by the committee at the AGM for 2002 or at either of two earlier extraordinary general meetings.

At a committee meeting on 8th March 2003, the committee endorsed maintenance projects for the following year’s budget including obtaining a quotation for re-fixing roof on both buildings, and obtaining quotations for sealing the asbestos roof sheets. Such quotations, if obtained at all, were not subsequently put to the AGM of 2003 which was held in June.

At the committee meeting on 24th April 2004, the committee once again endorsed the repair/resealing of the roof or replacement during the following financial year. However, there were no motions about roof repairs put to the AGM of 2004 although other repairs about concrete were on the agenda, and there was no budget item for roof repairs.

The applicant wrote to the body corporate manager Australian Unit Administration ( the body corporate manager) on 5th May 2005 reporting "severe structural and ceiling damage at my property." She said that over the past 15 months there had been extensive cracking, stains due to water leaking, peeling paint and buckling of ceiling sheets. She also reported damage to her entry door frame. She said that the gutters on the entire building were rusting and could not cope with stormwater during the storms of 2004, and included photographs.

At a committee meeting on 28th May 2005 the committee noted the applicant’s letter and recorded –

"The existing roofs of the north and south building which are made of asbestos, the guttering downpipes fascia etc are in a poor state. The recent storms have shown the roofs to be incapable of protecting the units from the ingress of water. Three contractors have provided quotations for the total replacement of the roofs, guttering, downpipes, fascias."

The committee forwarded two quotes to the AGM of 2005 (Motion 11) for $64,779 or $70,742., and the motion for the cheaper quite was carried at the meeting.

The applicant says that "after considerable probing", the body corporate manager suggested that she make an insurance claim through the body corporate insurance CHU. (CHU)

"At this point it was fairly evident that the damage was not recent, but was through neglect of the building. David’s suggestion was therefore dishonest. As this was the only option given to me by the Body Corporate... nor more was able to be resolved."

The insurers asked for a date of the flood event and the applicant advised that the water ingress occurred in December 2004. On 14th June 2005 the insurance company, having arranged for R & S Trading Pty Ltd to inspect the Lot, concluded:

"The ceiling within Unit 10 are (sic) constructed of plasterboard and, as a result of the incident, all the ceilings are water damaged and stained. The ceiling sheets are also detaching from the battens and sagging and, as a result the ceiling sheets appear ‘wavy’. The contractor is satisfied the failure of the ceiling sheets is not related to any recent water or storm damage to the premises, but is consistent with gradual deterioration of the ceiling fixings and/or the ceiling battens itself ( sic.) It is likely that the ceiling battens have rotted and shrunk with age, and perhaps prolonged exposure to dampness in the ceiling has also contributed to the ceiling sheets failing."

With regard to the damage to the entrance door, CHU concluded "the gap has occurred as a result of age, deterioration, wear and tear and building movement" and that rainwater has also been allowed to penetrate between the door jamb and the inside lining.

The insurers would not accept the claim as the result of an accident, although they accepted that the waterstaining on the ceilings was recent. CHU adjusted the claim to the cost of resealing and painting the affected ceilings only, and advised that no internal repairs should be effected until the repairs or replacement to the roof had taken place. CHU advised that the deterioration of the door frame would not fall within the scope of the policy.

On 21st June 2005, Coastline Building Certification Group Pty Ltd, (Coastline) (which is the same company that carried out the pre-inspection report for the applicant), carried out another inspection for her. That company concluded that since 2001, "the condition of both the external blockwork and the roof covering has deteriorated to such an extent causing the reported damage." The damage reported was as follows-

On 23rd June 2005 the applicant wrote to the body corporate manager with copy to the committee, that she wished to discuss the reports on her Unit at the AGM on 26th June 2005. She sought compensation from the body corporate . On 6th July 2005 she sent an email to the chairman and the body corporate manager requesting the committee could approve repairs to her door which are in the region of $500. There was no response from the committee until 27th July 2006 when the chairman Colin Longton advised that the body corporate manager would be making arrangements about the door.. On 28th July 2006, the applicant says in an email to the chairman:

" Please note that I first advised the body corporate of water leakage through the ceilings of my property on 5^th May, almost three months ago.."

The applicant was still waiting for news on the roof works and her door on 23rd August 2005, and contacted solicitors Hemming and Hart.. The body corporate manager advised on 2nd September 2005 that there would be a committee meeting on 22nd September 2005 about the replacement of the roof and various other issues. On 2nd September 2005 a contractor sent by the body corporate allegedly reported that the applicant’s door frame had been damaged internally and was therefore not the responsibility of the body corporate. This is in direct conflict with the CHU report and the Coastline report.

At the committee meeting on 22nd September 2005, the applicant says her defective door was not discussed, and there was no firm date given for roof repairs.

The applicant wishes to renovate her unit. The committee and caretaking service contractor has advised her that in accordance with scheme by-laws she cannot renovate her unit without the approval of the body corporate. The chairman has verbally given her permission over the phone. The applicant says that in practical terns she cannot renovate her unit whilst it is still subject to leaks and the ceilings need repairing.

The applicant provided further information on 20th October 2005 that the body corporate proposed to replace the roof. She was concerned that those doing the work were not licensed to remove asbestos and that the work would be was done without allowing her to inspect her ceiling battens as she had requested. The body corporate also sprang an option for roof insulation on lot owners giving owners one day to pay up $595 if they wanted the roof to be insulated whilst the new roof was going on. The applicant says there was no explanation of the benefits of this or the type of material to be used. In conclusion, the body corporate has delayed fixing the roof and then has bungled the replacement of it.

Her claim totals $11,646 exclusive of the unknown cost if the ceiling battens are found to need replacing, and includes the repairs and decorating, solicitors fees, removal of furniture, storage of furniture and rent of alternative accommodation for herself for 4 weeks.

Submissions were invited from all lot owners in accordance with section 243(2)(b) of the Act. Submissions were received from Graeme Connell, who says that the body corporate has carried out renovations in a timely manner and has an ongoing programme for renovations. He says the roof is in fair condition but may leak in extreme conditions, and that the applicant’s unit was probably damp when she purchased it, which would have been evident if " inspected correctly."

Wendy Brandon, owner of Unit 6, is concerned that the applicant is seeking to use the age of the building and the fact that she has not maintained her unit as an excuse for the body corporate to pay for her renovations.

Terence Klein points out that the applicant’s building inspector did not inspect roof covering even on his second visit, and that the damage to ceilings is fair wear and tear due to age of the building and the roof.

Wayne Matheson, who is the caretaking service contractor for the scheme made a submission as owner of Lot 15. He says that the South building was constructed in 1969, as part of a motel. The building " was not ...very sophisticated by standards of the day" eg the fibro roof could have had water blow in underneath it. He says the state of the applicant’s ceilings is caused by "infrequent ingress of water in extreme weather over 35 years," and says other ceilings in the ten top floor lots are in the same state, or worse.

He says that for 25 years the buildings had "a dubious maintenance history " which is reflected in early committee minutes. He recalls that the previous owner of Lot 10 did a lot of maintenance to the unit and that the ceiling was a "constant problem." He "needed to patch, sand and paint the ceiling every 18 months to 2 years." He says that the applicant has done no maintenance.

"The lack of maintenance on this type of ceiling can result in moisture being absorbed into the old fibrous plaster, which will cause the weakening of the fixtures to the batten and in some cases bowing and rippling of the ceiling."

He says that the Gold Coast has had extended drought conditions for several years and then in the past 18 months had severe storms and extended rain. The ceiling is commencing the final stages of its life. He adds. ‘The deterioration of the ceiling will also have been affected by the moist air from the bathroom exhaust fan, directed into the ceiling void"

Like Mr. Connell, he disputes the thoroughness of the applicant’s building inspector who did not look under the roof to note that there was no ‘sarking" built into it.

He says the roof of the south building is only being replaced because the gutters need doing and the cost of scaffolding was a major consideration, since the roof plates will have to be " re-screwed with specially made stainless steel fixings" in the near future. The roof is still " in a working state."
The body corporate has never been told by an inspector that the roof should be replaced.

The body corporate was only aware of the applicant’s problems for the first time from her letter of 5^th May 2005. As caretaking service contractor, Mr Matheson visited the applicant and viewed her ceilings and told her that many of the ceilings in top lots are the same, and that her ceiling was a problem to the previous owner. In his view the applicant purchased "a liability."

Digby Cooper owner Lot 19 says that when the applicant reported the problem to the body corporate, it "should have done minor repairs out of the sinking fund." To postpone repairs whilst considering it might be an insurance matter indicates a failure by the on-site manager and committee and poor advice from the body corporate manager.

David Yeates, representative of Australian Unit Administration, the body corporate manager for the scheme, makes a submission on behalf of the body corporate. He says that the committee has monitored the condition of the roofs of both buildings for a number of years and had always understood that the roof sheets have no holes in them and are in good condition for their age, but that the fixings were reaching a point where re-fixing would be required. The committee also received advice to replace guttering, downpipes and fascias. The Committee "has always been sceptical about applicant’s contention that there are holes in the roof" and engaged an independent building inspector to report. No holes were identified.. He concludes-

. "The roof was never designed or meant to be completely waterproof".

The building consultant contracted by the body corporate Geoff Parker inspected the roof on 10th October 2005, and says that fixing screws are corroded and flashings are in poor to very poor condition, both requiring replacement. The cement roof sheet and ridge cap material are in good to fair condition.

The body corporate also asked lawyers Short Punch and Greatorex to make a submission on their behalf. They say that the ceilings form part of the applicant’s lot and that the applicant fails to establish a causal connection between the requirement for a new roof and her damaged ceilings. On the removal of the old roof sheeting on 28th December 2005, the body corporate noted that some of the ceiling battens had been glued to the applicant’s ceiling in places, and again suggest that the applicant’s bathroom exhaust fan may have contributed to the damp in the ceilings

In reply, the applicant says that with the advice of three builders she " simply cannot see how rusty water stains can be from anything other than a hole in the roof." The water enters the roof through the "leaky old screws." She says the fan in her bathroom cannot be responsible for the condition of the ceilings, and seems physically unlikely to have the effect described by Mr Matheson.

She says that she has not been able to do any maintenance on her ceilings since they are affected by water ingress from the roof. She was overseas from 2001 to late 2003 and the unit was rented out through Mr Matheson. On her return she found the ceilings were not in good condition, but all trades advice was that there was no point painting if the roof was still leaking.

I sought further information from the applicant on 18th January 2006. On 2nd February 2006 she provided a revised claim for costs but says that despite the new roof, her dispute remains the same in respect of her damaged ceilings. To her claim she has added the sum of $160 for storage of certain white goods which she has purchased but cannot have delivered. She has included her lawyer’s bill, which I have dealt with under the heading " jurisdiction" The updated claim is for $12,294.98 exclusive of the battens if needed, and decreases her claim for electrical work from $1000 to $450 so that labour only is claimed. The claim for alternative rental accommodation is increased by $720 to $1,800 as she says during the dispute the caretaking service contractor has become more and more upsetting so that she cannot stay in another unit in the same building with him " as landlord."

She says that whilst the new roof was going on "she did make every effort to have battens inspected during the time of the works but understandably for insurance reasons, was unable to have my own inspector on the roof during that time." She cannot say if the battens are damaged or not.

The claim includes painting and sealing which may be paid for by the insurers CHU, although this is not certain.

DETERMINATION

In this matter, certain facts are not in dispute. The building in which the applicant’s lot is situated is about 40 years old, and the roof, prior to removal and replacement by the body corporate on 28th December 2005, was constructed of asbestos. It is established that for some time prior to replacement, the roof fixings were corroded and the flashings were in need of replacement. Guttering, downpipes and fascias also needed to be replaced. The body corporate says that the roof had no "sarking" underneath, and that this was an accepted building standard for the year of construction.

The applicant purchased her unit in 2001, but rented it out until late 2003. She came to live in it in at the beginning of 2004. On 5th May 2005 she alerted the body corporate to the fact that she had damage to her ceilings through water ingress. This fact that the ceilings are damp is not in dispute, in fact the caretaking service contractor has advised the applicant that the previous owner used to suffer from damp ceilings in the same way, and that several other lots on the top floor are also affected, some worse than hers.

It is not disputed that the roof is common property and that the ceilings are within the applicant’s lot. However, the ceiling battens are not addressed by the body corporate’s submissions.

"Miami Beach Apartments" CTS was registered as a building unit plan under the previous relevant legislation, the Building Units and Group Titles Act 1980 ("BUGTA") only on 25th March 1993. Building Unit Plans are now referred to as "building format plans."

Section 9(5) of BUGTA states

(4) Except to the extent permitted under directions of the registrar about the required format for a building format plan of subdivision, the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling.

There is nothing recorded on the registered plan to show that the boundaries between lots and the common property is other than the general provision set out above, that is, the centre point of the floor, wall or ceiling. The overhead boundary of each lot is therefore the centre of the ceiling, which means that the roof void (the space between the ceiling and roof) and the roof timber frames within it, are part of common property.

However, the battens underneath the timber frame will fall into the "halfway mark" above the applicant’s ceiling and the roof frames which are common property. The boundary of the lot falls in the centre of the combined widths of the ceiling sheet and the batten to which it is attached, which puts the ceiling battens in shared ownership, impractical though that is. It is also not possible without knowing the widths to know what percentage of the batten is common property and what percentage is within the applicant’s lot. Further, if the battens are " essential supporting framework" then even if they are partly within the applicant’s lot, they will be the responsibility of the body corporate by virtue of section 108(2)(b)(ii) of the Accommodation Module, as set out below

I am not certain which part of the allegation about the door frame remains in dispute. Certainly it is accepted by both parties that the door frame is damaged and in need of repair. The door frame is treated as common property by virtue of section 108(2)(a)(ii) Accommodation Module as set out below. Whether it is accepted that water ingress has caused or exacerbated the damage is not clear. On 2nd September 2005, a contractor acting on behalf of the body corporate found that " the door has been damaged internally." The body corporate has not disclosed why it thinks this to be the case. The applicant says the cause is movement of the building which has opened up a gap thereby allowing water ingress.

The applicant who asserts that the body corporate is to blame for the state of her ceilings, must demonstrate that on the balance of probability, this is so. To assist her in this, the applicant has provided three reports from building consultants as follows –

None of the above consultants went onto the roof. The first and third report show that the roof was viewed from either below or from an adjacent construction.

The body corporate has provided a building report dated 10th October 2005 from Geoff Parker Building Consultant and Inspection Services. The consultant went onto the roof and took photographs. This report recommends replacement of all roof fixing screws, washers and penetration sealants and flashings. The report noted some re-sealing of fixing screws with mastic, repairs to roof flashings, and corroded fixings and screws in the roof of the south wing.

The body corporate is responsible for maintaining the common property in good condition. The body corporate has additional responsibility under a Building Unit Plan of subdivision (such as is this scheme) for the maintenance of structures with provide protection, and for doors where in a boundary wall between the owner’s lot and common property.

(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--

(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--

(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.

"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.

However, the body corporate is not responsible for "renewing" rather than repairing. In a building that is over 40 years old, which has been poorly maintained over many years, and only became a body corporate in 1993, it is not reasonable for the body corporate to commence a programme of renovation which would incur considerable expense to individual lot owners.

I am satisfied that the body corporate is reluctant to spend large sums of money on maintaining the building and that owners have for some time been considering a development application to the local authority without much progress. Clearly, in a prime area of real estate this opportunity must be in the mind of respective owners. I find that the body corporate has waited for as long as possible to stave off spending $60,000 to $70,000 on repairing the roof and replacing the guttering.

I accept the applicant’s evidence that the committee has known about the need to replace the south building roof since at least February 2002, as shown by the committee minutes. From May 2005, the committee was left in no doubt that the roof was letting in water, from the applicant’s letter to the body corporate manager, and its own finding "The recent storms have shown the roofs to be incapable of protecting the units from the ingress of water. "

It is at this point, at the latest, that the body corporate should have taken action.

Whilst the applicant takes pains to show that the body corporate has been allowing the building to deteriorate at least since 2002, she herself proposed no motions to a general meeting, nor contacted the committee prior to 5th May 2005. A major part of the damage to the ceilings occurred during the storms of December 2004, yet there is no correspondence until five months later. She noted the ceiling damage when she took up residence in the lot at the end of January 2004 but apparently said nothing to the committee.

As a lot owner, she should have been aware of committee minutes of 8th March 2003, and 24th April 2004 ( both of which concerned roof repairs) as well as the state of her own lot, even if she was overseas. I note that the committee resolutions to put quotations for fixing the roof to the successive annual general meetings of 2003 and 2004 were not complied with, but the applicant did not query this.

It is this aspect of the dispute which is difficult to balance, as there is no evidence of how much the applicant’s ceilings have deteriorated between 5th May 2005, and the time she submitted her application in September 2005, nor whether if she had alerted the body corporate to her plight early in 2004, (when tradespeople were telling her that there was no pint in painting the ceilings until the roof was made watertight) her claim would now be less.

The applicant went along with the claim to the insurers, which she considered " dishonest." I do not accept that the actions of body corporate left her no other alternative. She could have proposed a motion to the forthcoming annual general meeting, as she perhaps tried to do, although she framed her request not as a motion but as a letter sent to the body corporate manager only three days before the general meeting, so that it could not be tabled as a motion and voted on by all lot owners; or she could have made an application to this office in June 2005. However, I note that the insurers may be of the view that once the roof is secured against further water ingress, that it would meet the cost of painting and re-sealing the ceilings as at June 2005.

Whilst the applicant did not deal with the damage to her unit on discovery, I find the stance taken by the body corporate neglectful and bordering on the absurd. To say that "The roof was never designed or meant to be completely waterproof" is ludicrous. The roof was designed and meant to be completely waterproof, and if water is able to penetrate the roof in extreme storm conditions, which I think is the body corporate’s argument, then such water penetration is accidental and not mean to happen. It is for this reason that the insurers contemplate the sealing and repainting of the ceilings once the roof is made waterproof.

Further Mr Matheson’s remark that the dampness is caused by the applicant’s lack of maintenance (ie. her failure to seal the ceiling from the inside) is like blaming the victim of an assault for not getting out of the way.

The cause of the dampness in the applicant’s ceilings is undoubtedly not her failure to maintain them, but that rainwater comes through from the exterior roof which is the body corporate’s duty to maintain. Attempts at maintenance have been made. The deteriorating screws have been bogged with mastic, and flashings have been painted over with some substance in an attempt to prevent water ingress through those broken flashings. In average rain conditions such patchy maintenance may suffice. In heavy weather, the maintenance performed on the old roof is not enough and it leaks water into the applicant’s lot. It should not do so, and the body corporate is responsible for seeing that it does not do so.

Even with proper maintenance, severe weather may allow water to penetrate. That would be an accidental event suitable for consideration by the body corporate’s insurers. But the roof has not received proper maintenance and over time, that failure to maintain has caused the roof and the applicant’s ceiling to deteriorate.

Section 281 of the Act states as follows-
281 Order to repair damage or reimburse amount paid for carrying

(1) If the adjudicator is satisfied that the applicant has suffered damage

A waterproofing membrane in the roof of a building in the scheme leaks and there is

damage to wallpaper and carpets in a lot included in the scheme. The membrane is part

of the common property and the leak results from a failure on the part of the body

corporate to maintain it in good order and condition, the adjudicator could, on

application of the lot’s owner, order the body corporate to have the damage repaired or

to pay an appropriate amount as reimbursement for amounts incurred by the owner in

I find that the applicant has suffered damage to her property as a result of the contravention of section 108 of the Accommodation Module by the body corporate. I find that the damage to the entry door has been caused by movement of the building opening up a gap around the frame and water entering the gap as per the reports of R &S Trading Pty Ltd and Coastline referred to above.

Since the repairs have not been done, I can only order that the body corporate carry out the repairs, and not that the body corporate pay the applicant a fixed sum of money. However, since the applicant has provided quotes for the work to be done, these quotes should now be considered by the body corporate.

The order I make, with the exceptions as noted below, is to the overall intent that the body corporate and the applicant shall be responsible for repairs in the ratio 75% -25%. I consider that had the applicant acted sooner to protect her home, being aware, as was the body corporate by 2002, that the roof was in a poor state, and that her property was vulnerable, and had she drawn the body corporate’s attention to her ceilings and doorframe prior to 5th May 2005, her unit would not be in such a poor state of repair.

The repairs will result, even at 75%, to "major spending" for the body corporate. By section 101 (1)(d)(ii) Accommodation Module, an adjudicator may order that the committee carries out works above the relevant limit of committee expenditure. In the usual course, such spending would require at least two quotations to be put to a general meeting of the body corporate. However, I shall order that the committee shall, within 21 days of the date of this order obtain at least two quotations, of which the quotations provided by the applicant shall be one, for the committee to make a decision on the required contractor(s) for the repairs.

The committee is to seek quotations for the repair of the entrance door to Lot 10; for repair/replacement of ceilings including skip bin hire, removal of asbestos dust if still necessary after the replacement if the roof, and for maintaining the integrity of the wiring whilst repairs are taking place; and for repainting and resealing of the new ceilings.

In addition I order that the committee arranges an inspection of the ceiling battens in the applicant’s unit, and in the event that the applicant and the committee disagree on the inspector, that the inspection is undertaken by R&S Trading Pty Ltd, which is a company which has been concerned in this matter on behalf of the insurers CHU. A set of 10 photographs taken by the body corporate at the time of the replacement of the roof are to be made available to the applicant and the chosen inspector. The applicant is to be present at the time of the inspection of the ceiling battens which may have to be accessed from inside her unit.

I have decided that it is not necessary to know where the exact boundary of the applicant’s lot is, or whether the battens are "essential supporting framework." Even if the body corporate is wholly responsible for the battens, if they are found to be in damaged condition, I find that such damage will have been exacerbated by the applicant’s failure to notify the body corporate sooner. If it is the opinion of the inspector that repair or replacement is recommended, the applicant’s responsibility for repairs shall be one eighth of the cost, or 12.5%, and the body corporate’s responsibility shall be the remaining 87.5%. The inspector’s fee will also be paid in the same proportions. The repairs shall be undertaken at the applicant’s request. The applicant may decide not to continue with the repair and/or replacement if she wishes.

The applicant seeks accommodation for herself for 4 weeks whilst the work is in progress. Whilst it has long been established that " loss of rent" is not a cost which an adjudicator has authority to order, in this circumstance I consider that it is reasonable that the applicant is re-housed whilst her ceilings are removed, and it is thus an associated cost of the repair. Since it is unclear how long the work will take I will order that the body corporate pay 75% of the re-housing of the applicant, with a limit of $250 per week ( ie a total rental of $333 would be covered in the 75%-25% split) and it is a matter for the applicant if she wishes to seek upgraded accommodation. It is hoped that this formula will ensure that the works are progressed swiftly.

The applicant seeks removal and redelivery of all her furniture whilst work takes place. Quotations obtained by the applicant are for $1013 for transport and redelivery and $170 for one month’s storage. The removal and delivery fee will be met 75%- 25% by the body corporate and the applicant. The storage fee will also be met 75%-25% for the time it takes to complete the works.

I shall not order that the applicant’s request for "storage of white goods" at $160 is met. This relates to items purchased which cannot yet be delivered. They are not in my view an "associated cost" of repairs, and perhaps they should not have been purchased until the applicant could house them.

The applicant has not demonstrated that there is any need for "electrical reinstatement" of the sort detailed in the quotation from L and R Appliance Service. Whilst it is quite acceptable that the applicant wishes to renovate her unit, I am not satisfied that water ingress has caused damage to any electrical fitting. If there is a cost for dealing with existing wiring whilst the new ceilings/battens are being fitted, then this should be part of the quotation from the ceiling contractors. The applicant may like to get her own electricians to work with the ceiling contractors.

This leaves only the painting and re-sealing of the Lot. The applicant has provided a quotation for painting and resealing at $1,938, but on 14th June 2005, CHU approved such works in principle, saying, -

This order covers the obtaining of such quotations. If the body corporate insurers will not meet this repair, then the chosen painting contractor’s bill will be met as to 75% body corporate, 25% applicant.

As a general comment I would advise the body corporate that even though there may be future re-development of the scheme land, that the responsibility to maintain the common property cannot be excused.

Lastly, I note that by-law 18 for the scheme concerns renovation of a lot, and states that "any fitout or renovation must have the prior written approval of the Body Corporate." This by-law may well be contrary to the common law principle that every owner of freehold land has the right to do what he wants on his or her property provided that it does not cause a nuisance to others enjoying their own lots or the common property. This scenario is covered in by law 1 (noise) and under the legislation at section 167 Act (nuisance). There would be no reason why an owner who is not planning any changes to the structural support of the building or impingement on common property should seek permission from anyone to renovate his or her lot.

Number of Scheme:	3192
Name of Scheme:	Miami Beach Apartments
Address of Scheme:	8 - 12 Marine Parade MIAMI QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Miami Beach Apartments [2006] QBCCMCmr 68 (15 February 2006)