Barclay Court [2007] QBCCMCmr 15 (11 January 2007)

Number of Scheme:	1368
Name of Scheme:	Barclay Court
Address of Scheme:	4 McPherson Close EDGE HILL QLD 4870

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

I hereby order that the application for an order
"that the owner of Unit 8, 4 McPherson Close, Edge Hill be held responsible for the part of the damage caused to Unit 1 as a result of water leakage from the shower area of Unit 8 due to delay in rectifying the problem and failure to adequately rectify the problem"
is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0756-2006

"Barclay Court" CTS 1368

APPLICATION

This is an application dated 12^th September 2006 and amended on 12^th October 2006, by Justin Healy (the Applicant) owner of lot 1, against Xiao Fen Wang (the Respondent) owner of Lot 8, for an order that the Respondent be held liable for the part of the damage caused to Lot 1 as a result of water leakage from the shower area of Lot 8, due to delay in rectifying and failure adequately to rectify the problem.

JURISDICTION

"Barclay Court" Community Titles Scheme 1368 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 14 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)).

SUBMISSIONS

The Applicant says that on 28^th June 2006 the gyprock of his bathroom ceiling collapsed. He was then aware of a leak from the unit above, Lot 8. He asked plumbers (Eagle) to inspect and Eagle reported to The Community Managers ( the body corporate manager) that the provenance of the leak was a waste pipe expansion joint connected to Lot 8 above. There was also a second possible leak from the toilet of Lot 8, although water may have been entering through the block wall. Eagle recommended further exploration into the Applicant’s ceiling, and on 17^th July 2006 found that the leak came from around the bath in Lot 8 above, because the water was seeping through the tile grout around the waste outlet.

On 25^th July 2006, Eagle recommended that the bathroom in Lot 8 be resealed and waterproofed, as well as the waste pipes checked and repaired.

The body corporate manager contacted the letting agent, the Professionals, for Lot 8 and asked them to effect repairs on behalf of the Respondent.

On 26^th July 2006, at the request of the letting agent, another plumbing service (Mackie) inspected Lot 8 and provided a report for the Respondent. In that report, which was directed to the letting agent, Mackie found some sealant needed replacing and recommended that the shower " requires a full re-grout and re-seal." It also noted that the Applicant had requested that a firm called ‘Mighty Seal’ be engaged to inspect the waterproofing of the shower recess as to whether the tiles required removing, waterproofing and replacing, or simply re-grouting.

The Respondent had not authorised the recommended repairs by 6^th August 2006. The Applicant says that body corporate therefore instructed the body corporate manager to notify the Respondent that the body corporate held the Respondent responsible for damage occurring after the date of notification to the letting agent.

On 22^nd August 2006, Dick Trollope (Mr Trollope), who acts on behalf of the Respondent, contacted the body corporate manager and requested copies of both plumbers’ reports. He said he would not accept the quote obtained from Mighty Seal by the letting agent.

Eagle provided a second report to the body corporate manager on 26^th August 2006, reaffirming their view of the work which needed to be done. They suggested removal and re-sealing of tiles around the shower waste outlet I Lot 8, and for installation of a flange and grate. This report was forwarded to Mr Trollope with the other two reports.

On 25^th August Mr Trollope said he would get his property manager to arrange for the new flange and grate assembly to be fitted, and that he would have the work done " within a few days" after the tenant had moved out on 11^th September 2006.

The body corporate manager again wrote to the Respondent, saying if he did not follow the plumbers’ recommendations he would be held responsible for future damage.

On 8^th September 2006, water was still entering the ceiling of Lot 1. The letting agent advised the body corporate manager that Eagle would install the flange and grate assembly on 11^th September 2006. Repairs were then effected by the Respondent and the leak stopped.

The water leak has caused substantial damage to the Applicant’s Lot and caused inconvenience to him in that from 28^th June 2006 he has not been able to use the light or the exhaust fan in the bathroom. A bedroom ceiling was also damaged and needs repainting.

The Applicant has made an insurance claim on the body corporate insurers for repairs to his ceilings which claim has been accepted. The repairs for the reinstatement of the ceiling were carried out at the end of November 2005 at a cost of $1250 including GST and the painting work should be completed by the end of January 2007 at a cost of $528 inclusive of GST.

He provides photographs of his Lot showing the removed ceiling, and water leaking into a bathroom.

The Respondent, through Mr Trollope, made submissions. She says that they were first advised of the leak on 25th July 2006 when the body corporate manager contacted their letting agent. There was no mention that Eagle had been already engaged in this matter since 28^th June 2006 and had done an invasive inspection of Lot 1’s ceiling. Consequently, the letting agent called in Mackie to see what the problem was, and Mackie met the Applicant on site. The Applicant mentioned the firm "Mighty Seal."

The letting agent then obtained a quotation from Mighty Seal for $595 to do repair work. The Respondent thought this was high but agreed to it, and Mighty Seal was engaged to do the work. The respondent and Mr Trollope then received a hostile letter from the body corporate saying that if they did not follow recommendations by Eagle, they would be held responsible for further damage.

On 11^th August 2006, the Respondent’s tenant told the letting agent that there was jack-hammering going on in Lot 1 below Lot 8’s shower. He asked the letting agent to find out if Mighty Seal had commenced work, and what work was going on in the ceiling of Lot 1. He told the letting agent to stop Mighty Seal from commencing. He obtained a copy of both of the ‘Eagle’ reports at that time. The drain grate was a new idea. The letting agent asked Mackie about a drain grate but he did not want to quote, so Eagle then did the job. The job was scheduled for 18^th September 2006, but the re-grouters then could not re-grout and re-seal the shower over the raised drain grate. The problem was not fixed until 25^th September 2006, when the re-grouters re-grouted and re-sealed the shower recess.

On 18^th October 2006, a cleaner reported that the tiles in the shower in Lot 8 were loose as the adhesive had not set. The letting agent’s maintenance man removed, cleaned and reset them.

Mr Trollope denies that there was any delay in acting once he knew about the leak, but there were too many plumbers involved and the Applicant complicated matters by mentioning a third contractor ‘Mighty Seal.’ He seeks $99 back from the body corporate for the unnecessary visit of Mackie to Lot 8.

The Applicant exercised his right of Reply on 27^th November 2006.

He says that at no stage did he suggest that the Respondent engage another plumber to do a report, but after Eagle reported, it was presumed that the Respondent would engage her own workmen. He denies that there has ever been any jack-hammering in his Lot. It is erroneous to say that any delay was caused by the firm ‘Mighty Seal.’ That Mighty Seal be engaged was merely a suggestion by the Applicant and there was no obligation on the part of the Respondent to use this firm. In fact, Mr Trollope said on many occasions that he would not accept a quotation from Mighty Seal.

He points out that his photos show calcification which is evidence that the leak from Lot 8 had been continuing over a long period of time.

DETERMINATION

In this matter, the facts are largely not in issue. Water from Lot 8 has penetrated the ceiling of Lot 1 and has caused damage to the bathroom of that Lot and also to the décor of the ceiling of a bedroom.

Mr Trollope does not deny that the Respondent is liable for the original leak, or that the water emanated from Lot 8, but denies vehemently that any further damage was occasioned through the delay in repairs effected by the Respondent. In fact, he says that the Applicant has wasted his time and money.

There seems to be some confusion between the division of responsibility, in that Mr Trollope seeks $99 from the body corporate and not from the Applicant, and the Applicant has the close ear of the committee since he is the secretary. I cannot consider any application for $99 from Mr Trollope or the Respondent. Such would have to be made through their own application to this Office, but I recognise that the "counterclaim" as such is sought to be set off against any money which I may order to be paid by the Respondent.

However, the Applicant has confirmed in a fax dated 5^th January 2007 to this office, that the repairs to his ceilings are to be met by the body corporate’s insurers, who have accepted the claim. I asked the Applicant if he wanted any money from the Respondent and he replied that the outcome he seeks " is reimbursement to the insurance company for the payment of repairs carried out" to his Lot.

Indeed, his application is for an order that "that the owner of Unit 8, ... be held responsible for the part of the damage caused to Unit 1 as a result of water leakage from the shower area of Unit 8 due to delay in rectifying the problem and failure to adequately rectify the problem" and not for any payment to be made to him by the Respondent.

As such, I have no jurisdiction to make such an order. It is a matter for the insurance company if it wishes to reclaim money from the Respondent. Further, there is no indication of a continuing dispute between the Applicant and the Respondent. The problem has, at least for the present time, been fixed, and the Applicant is not out of pocket.

I can only refer the Applicant to the legislation which requires that each lot owner has a duty to maintain his/her own lot in good condition (section 120(2) Standard Module). Further, section 109(3) Standard Module states as follows –

(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit; and

(b) the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that the utility infrastructure--

1 An airconditioning plant is installed on the common property, but relates only to supplying utility services to a particular lot. The owner of the lot would be responsible for maintaining the airconditioning equipment.

2 A hot-water system is installed on the common property, but supplies water only to a particular lot. The owner of the lot would be responsible for maintaining the hot-water system and the associated pipes and wiring.

(* refers to sections detailing the body corporate’s responsibility to maintain certain structures in a Building Unit Plan of subdivision.)

This application therefore fails for technical reasons.

Further, as regards a decision on the merits of the application, there is no evidence as to by how much the cost of the Applicant’s repairs may have been extended or exacerbated by the delay in repair or the adequacy of the repair by the Respondent, even if such delay was proven as being the fault of the Respondent, or the adequacy of the repair was demonstrated.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Barclay Court [2007] QBCCMCmr 15 (11 January 2007)