Pumicestone Apartments Caloundra [2007] QBCCMCmr 119 (2 March 2007)

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

I hereby order that to compensate Francis Webster, the owner of lot 1 (the applicant) for replacement of carpet damaged as a result of water ingress, the Body Corporate of Pumicestone Apartments Caloundra CTS 17502 pay the applicant the amount of $108.00, within 1 month of the date of production of the receipt for recarpeting 2 rooms of Lot 10..

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0970-2006

"Pumicestone Apartments Caloundra" CTS 17502

Application

Francis Webster the Owner of lot 10 (the applicant) seeks the following orders against the Body Corporate of Pumicestone Apartments (the respondent):

The Scheme

Pumicestone Apartments CTS 17502 is a 12 lot building units plan registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997. Typically, this module is intended for residential arrangements.

Jurisdiction

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)).

Grounds

The applicant advises that the Body Corporate has now repaired the leak on the wall outside but will not renew the damaged carpets in the two bedrooms.

He provides two quotes he has sourced to replace the carpets in both of the effected rooms. He points out that the quote of $1,399 from Supa Cheap Carpets is much cheaper that Carpet Call’s $2,067 because Supa Cheap maintains new underlay will not be required.

He states that he first approached the Body Corporate about replacing the carpets in around June 2006 and was told by the chairperson that while the external repairs would be met by the Body Corporate, he would responsible for carpet replacement.

He advises he then approached the body corporate manager who confirmed that the insurance does not cover carpet and that there was no hope costs of replacing the carpet would be met by the Body Corporate.

He supplies photos of the points of water ingress.
Submissions

Five submissions were received. One was the body corporate manager on behalf of the committee, another from the chairperson as chairperson and another from the chairperson as an owner. The points made in these submissions are:

Two other owners made submissions and both object to meeting the cost of replacing the applicant’s carpets. This is on the basis that all owners were told they needed to take out contents insurance, presumably extending to carpets. One says it is not a Body Corporate matter and would be a precedent for inappropriate claims.

Maintenance Generally

Following are a series of extracts from the fact sheet produced by the Office of the Commissioner for Body Corporate and Community Management titled Maintenance.

Maintenance in this Scheme

Pumicestone Apartments Caloundra is registered under Building Units Plan of Subdivision and therefore attracts the application of the discussion extracted from the fact sheet (above). Following is a view of Level F of BUP 101771(Pu

micestone Apartments Caloundra):
By-law 4.2 for this scheme states that "A proprietor of a lot shall ... ... maintain in good condition and repair the exterior of the lot including the walls and windows". Therefore on the face of it the applicant is responsible for maintenance of the windows and doors leading to the lot.

However, there are aspects of this matter that lead me to conclude that the Body Corporate concedes responsibility for the damage incurred within the balcony area. These are:

In those circumstances I conclude that the Body Corporate accepts responsibility for the water ingress to the applicant’s lot.

Further Information

The adjudicator asked the applicant a series of questions. The questions asked and answers received are as follows:

Q:	*Approximately how long ago did the water ingress begin, to each of the rooms affected?*
A:	The applicant refers to a letter provided by the chairperson that indicates the committee inspection took place in December 2005 and that some immediate repairs were made. Further repairs were discussed at a Body Corporate meeting in March 2006 and the first stage of this was completed by July 2006. The applicant states "Initially I was not aware of water seepage and was surprised at the comment from Roof & Building Services that they considered the windows had been leaking for at least 2 years. However it was proved that the windows were not the cause".

Q:	*What steps did you take to dry the carpets when this happened, to reduce damage?*
A:	The applicant states "Towels were placed on the carpet with a fan to assist drying".

Q:	*How long ago were the leaks finally corrected?*
A:	The applicant states "Approximately July 2006".

Q:	*How old is the carpet at this time (or advice from a carpet expert on the era in which* *the carpet was manufactured - perhaps based on style or nature of underlay used)?*
A:	The applicant states "Approximately 9 years old at the time of damage".

Q:	*Are the quotes sought for an equivalent quality carpet and underlay?*
A:	The applicant states "Yes".

Q:	*If there is a delay in seeking replacement carpet, why have you waited so long?*
A:	The applicant states "I waited to be sure the leaks were repaired effectively however no decent rain fell in this period.

Determination

The respondent states that the applicant has never formally raised the issue of carpet replacement with the Body Corporate. I sympathise with the chairperson’s discomfort that he may not have been afforded the fullest opportunity to investigate the Body Corporate’s position. It is clear from a letter from the chairperson to lot owners dated 30 May 2006 (provided by the applicant) that the chairperson is committed to doing the right thing by lot owners. However I sympathise equally with the applicant’s perception that advice from two different sources related to the Body Corporate, amounted to a refusal and consequently a dispute within the meaning of the Act.

I would like to note that the issue of insurance is not relevant in relation to my decision as to who is responsible to meet the cost of any damage incurred. My order can only be made against the applicant or the respondent and is not based on who should or shouldn’t have a fall back means for meeting the cost.

Section 109(1) of the Standard Module states that "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".

Section 152 of the Act provides that the body corporate for a community titles scheme must administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners. Also it must comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme.

Section 281 of the Act states that If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.

This section gives the following example:

The applicant is seeking to recover damage to the carpet of his unit pursuant to a provision of the legislation that allows an adjudicator to order compensation where an applicant has suffered damage to property because of a contravention of the Act (Act, 281). The body corporate has not disputed the ingress of rain water into the applicant’s lot and provides evidence that they engaged a contractor to fix the problem in relation to cracks and joints s soon as they became aware. However, they do not accept that the Body Corporate must repair and maintain an owner’s lot because that owner has not adequately insured themselves.

Where damage results as a result of a failure of all owners to ensure that the body corporate complies with its legislative obligations it is not fair that only those particular owners who are unfortunate enough to suffer the damage should pay the costs of rectifying the damage. Rather, all owners should contribute to the costs of rectifying all damage that resulted from the body corporate’s failure to maintain regardless of whose lot has been damaged.

It is reasonable to assume that some undermining of the applicant’s carpet has taken place through water ingress. The Body Corporate does not dispute this and notes that the chairperson inspected the damage at one point. It appears that unsuccessful attempts to save the carpet were made once the damage had been detected in December 2005. I accept the applicant’s reasons for the delay in making application to this office.

The applicant advises the carpet in the lot is around 9 years old. Applying the changes in the consumer price index which have taken place in the last 9 years^[1] to the lower of the two quotes, I estimate the value of the carpet at the time it was installed was $1,081.70.

The Australian Tax Office regards the effective life of carpet as being 10 years. In that case, it is appropriate that the applicant be compensated for the loss of 1 year depreciation of the carpet. This amounts to approximately $108.

I will order that once the applicant produces a receipt for installation of the new carpet, the Body Corporate must compensate him in the amount of $108.

Number of Scheme:	17502
Name of Scheme:	Pumicestone Apartments Caloundra
Address of Scheme:	61 Lower Gay Terrace CALOUNDRA QLD 4551

•	The Body Corporate acted promptly to address the water ingress when it came to their notice;
•	After the water penetration was corrected, at the applicant’s request, they delayed window rectification until the applicant was satisfied that the water ingress had been fixed;
•	The Body Corporate has not received a formal request from the applicant to meet the cost of replacing the carpet and they only became aware he was unhappy with the advice of the chairperson and body corporate manager recently;
•	The applicant failed to advise the Body Corporate of the water ingress for an extended period, estimated by the contractors at perhaps 2 years; and
•	The applicant did not tell the Body Corporate that he did not have contents insurance that covered a carpet claim until January 2007.

•	The maintenance of the outside of the building including railings or balustrades on, or near to, the boundary of a lot and common property. This would include the balustrade on a private balcony.
•	Gardens and lawns on common property.
•	The foundations of the building.

•	Doors and windows leading onto a balcony that forms part of the lot.
•	Kitchen, bathroom, bedroom cupboards.
•	Sinks, dishwashers, garbage disposal units, shower screens and shower trays.

•	Photos supplied by the applicant suggest that the water penetration around the windows is a result of seepage from various cracks and joints outside the boundary of the lot; and
•	The Body Corporate has accepted responsibility for these issues by engaging contractors and completing repairs; and
•	Co-operation demonstrated by the Body Corporate in suspending completion of repairs until the applicant was satisfied that the seepage through to his windows had ceased.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Pumicestone Apartments Caloundra [2007] QBCCMCmr 119 (2 March 2007)