Karri Court [2007] QBCCMCmr 341 (1 June 2007)

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

I hereby order that the body corporate causes the ceilings of the kitchen, lounge/dining-room and bedroom 2 of Unit 10 to be repaired or repainted in a workmanlike manner at the body corporate’s cost;

To this end I further order as follows –

a) that the body corporate acts in accordance with section 104 Body Corporate and Community Management (Standard Module) Regulation 1997 if the quotations require "major spending" ;
b) that any quotations are obtained and a general meeting of the body corporate is convened within 6 weeks of the date of this order;
c) that the body corporate effects the repairs promptly following the general meeting at which the choice of contractor is authorised;
d) that Lucia Giaccio allows access to Unit 10 for the body corporate to obtain quotations and to effect the repainting/repairs.

I further order that an application for orders as follows –
1. a declaration that Lucia Giaccio is not liable to contribute towards the cost of the repair to the ceiling of Unit 10;
2. that the body corporate reimburses Lucia Giaccio for the costs of and incidental to the painting of the ceiling of unit 10 in the sum of $4,180; and
3. for a declaration that Lucia Giaccio is not liable to contribute towards the costs of and incidental to the painting of the ceiling of Unit 10
are dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0589-2006

"Karri Court" CTS 13439

APPLICATION

This is an application dated 19^th July 2006 and amended on 21^st September 2006 by Lucia Giaccio (the Applicant) owner of Lots 6 and 10, against the body corporate for the scheme (the body corporate) for an order as follows –

By agreement with the body corporate, the Applicant held this application in abeyance until 31^st January 2007, when the adjudication process commenced, and submissions were sought from interested parties.

JURISDICTION

"Karri Court" Community Titles Scheme 13439 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 (the Standard Module). There are 12 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 she has been in dispute with the body corporate about a leaking roof since 2003. She purchased unit 10 on about 28^th April 2003. Her solicitors wrote to the then body corporate manager pointing out a water stain in the ceiling which appeared to be caused by water leaking from the roof. Between April 2003 and May 2004, she "submitted her requests" on numerous occasions to the body corporate manager and the body corporate to repair the roof. In May 2004, the chairperson told her that the roof was to be repaired in June 2004 and that it had been done by September 2004. The Applicant then repeatedly asked the body corporate to repair her damaged ceiling between September 2004 and June 2005. The unit could not be rented out. The Applicant finally got her own decorators, Walter Furlanis – Euro Painters (Mr Furlanis) to repaint the ceiling, and spent $4,180 on repainting in June 2005.

"A few months" after repainting the ceiling, she and her tenants noticed ugly stains again emerging, and it transpired the roof had not been repaired after all. The Applicant asked the body corporate to get an expert’s report to investigate the leaks, and found out that the tradesperson whom the chairperson had allegedly used, had done no work on the roof after all. The Applicant then employed Trade Squad to investigate the roof leaks. Trade Squad visited on 7^th November 2005 and reported on 9^th November 2005.

The body corporate has now engaged a tradesperson to repair the roof but has not repainted her ceiling. The ceiling now needs replacement plaster boards and painting. The Applicant originally sought compensation for painting, investigation costs, legal costs and loss of rental income.

Trade Squad found that the leaks were caused by the placement of the TV antenna, deformation and penetration of the roofing sheet, rusting screws penetrating the galvanic coating and the roof sheet; also water penetration in and round the box gutter, and wind blowing rain under the apron flashing and roof sheet ends; also through the side lap at sheet joints. It recommended removal of the existing box gutter and replacement with a new box gutter with adequate overflow; removal of existing roof sheets to enable replacing of the new gutter, and since that removal would distorts the old roof sheets, replacement with new roof sheets fixed with new flashings; removal of the TV antenna and refixing of the antenna on the side of the parapet "as previous TV antenna."

The Applicant instructed lawyers who on 17^th November 2005 wrote to Brisbane Bayside, the body corporate manager, and to Emma Bretherton the chairperson. They wrote again on 18th January 2006, all letters requesting inter alia that the body corporate repair the Applicant’s ceiling. The Applicant estimated the cost of repairs to be $8,000 to $12,000, and resigned from her position on the committee as treasurer.

On 13^th February 2006, there was a general meeting of the body corporate about the roof repair. Motion 2 was to spend $9,500 on mending the roof, as referred to by the body corporate in quotations from Mel Duncan Roofing and Trade Squad. A sinking fund levy of $18,000 at $1500 per lot to fund the roof repairs was also proposed. All motions were carried.

In accordance with section 243(2)(b) Act submissions were invited from all lot owners.

Lynette Johnson (Ms Johnson) made a submission as a lot owner of Unit 4 and current chairperson of the body corporate. She says she is now aware of a fax dated 28^th April 2003 from the Applicant’s then solicitors advising that there was a water stain on the ceiling of Unit 10, but the fax "did not come to light" until February 2006 when the body corporate was proposing to make an insurance claim, and the document was provided by the Applicant. There is no record of emails or correspondence from the Applicant to the body corporate or the then body corporate manager requesting repairs to the roof. There was no motion put by the Applicant to the AGM on 2^nd April 2004 about repairs to her roof, and the Applicant did not mention it at that meeting which she attended.

The chairperson between April 2004 and November 2005, was Emma Bretherton. She noticed that gutters and down pipes needed attention and asked for quotations to be obtained by the body corporate manager. An extraordinary general meeting held on 22^nd June 2004 refers to this. The builders quoting to do the gutter repairs noted that the roof was in need of repair in their report dated 13^th May 2004. A further motion for roof repairs was proposed at this meeting but was ruled out of order. The Applicant did not attend this meeting, but gave her proxy to the chairperson.

There is no record on the body corporate files of repeated requests by the Applicant between September 2004 and June 2005 to repaint her ceiling. The Applicant did not put a motion about repairing her ceilings forward to the annual general meeting in April 2005. The Applicant attended the AGM on 5^th April 2005 but did not bring this up.

Sometime between August 2005 and October 2005 the Applicant "informally approached the new committee about water leakage" in her unit 10. She was a committee member at the time, but did not propose a motion about the works to a committee meeting. However, she was asked to obtain a quotation which she did from Trade Squad (dated 9^th November for $22,866). The committee asked the body corporate managers to provide a quote which they did, from Mel Duncan Roofing Pty Ltd (Mel Duncan) (dated 21^st December 2005 for $9350). The committee reimbursed the Applicant the cost of $440 for her report. On 13^th February 2006, the quotation from Mel Duncan was approved at an extraordinary general meeting and a special levy fixed for the roof repairs. The Applicant refused to pay the levy. On 31^st March 2006 work commenced on the roof repairs and it was completed in early May 2006. Mel Duncan said that he could not see where water getting in over kitchen but that it was getting in through TV cable in second bedroom. He sealed the hole.

At a committee meeting held on 30^th November 2005, Ms Johnson took over from Emma Bretherton as chairperson, and the committee discussed the letter which they had received from the Applicant’s solicitors. The new chairperson contacted CHU insurers who on 15^th December 2005 declined the claim saying that the damage had occurred before they were the insurers. The committee then approached the scheme’s former insurers Allianz. On 10^th February 2006, Allianz inspected Unit 10 but the claim was eventually denied on 7^th August 2006. At this point the fax of 28 April 2003 came to light so the committee went back to CHU who had become insurers on 1^st February 2003. CHU wanted proof of the actual date of water damage. Despite the Applicant giving contradictory answers to the loss adjuster from what was said in the fax, CHU agreed to pay $3000. The Applicant has refused to accept this sum. Ms Johnson attaches a copy of the fax dated 28 April 2003.

Ms Johnson finds the cost of Mr Furlanis’s bill excessive for painting the ceilings. The wording of his bill indicates he painted the entire unit. Photos of Unit 10 taken before the painting show a different colour wall. There was an extraordinary general meeting held on 1^st June 2005 and Mr Furlanis’ invoice is dated 9^th June 2005, so work would probably have been going on at the time of the EGM. The Applicant did not say anything about water damage and her getting her own painter in at that EGM. The Applicant attended the EGM on 1^st June 2005.

The body corporate acted expeditiously when it knew of the problem. The ceiling was not inspected by a committee member between 2003 and early 2006. It was viewed in February 2006 by Ms Johnson and Emma Bretherton. The only evidence of water stains seen by them was in bedroom 2 above which is the TV antenna. There were no water marks in the kitchen or lounge room, and the ceiling did not to her seem to be in need of replacement.

The body corporate has since had an overall roof report done by R and S Trading Pty Ltd (R and S) and authorised further works on the roof. This report shows that entire roof frame has moved and roof sheets have sagged over Unit 10, so the sagging in Unit 10 may not have been caused by water damage. R and S checked other top floor units 9, 11 and 12 and found all to be fine. The body corporate has obtained a quotation to fix the roof frame and straighten battens. The report also referred to a previous quotation obtained by the Applicant on 18^th October 2005 for replacing ceilings in her unit.

Ms Johnson says that the Applicant did not get a building inspection report before she bought; she should have made an insurance claim in 2004; and the decision to paint her ceilings was made by her and at no time did she seek body corporate input. It is difficult now to inspect the damage after it has been covered up, and she has jeopardised an insurance claim. Further, she has not submitted any reports that say that the ceiling needs replacing. It is unreasonable to expect lot owners to pay for repairs to her unit because it is a body corporate responsibility.

Emma Bretherton (Ms Bretherton) as owner of Unit 11 and former chairperson of the scheme, says that the Applicant never mentioned to her anything about her ceilings until an email from her solicitor on 17^th November 2005. On 2^nd April 2004 Ms Bretherton took photos of water pouring from gutters, and she arranged to get quotes to fix the gutters. This quote was put to an extraordinary general meeting on 22^nd June 2004 and carried. There were also quotations for roof repairs recommended on the quotation for guttering, and a motion was proposed about roof repairs. However, another quotation obtained was not for the same work, and the motion was ruled out of order.

The Applicant did ask her who the contractors were for the roof repairs but she told her they were only doing the guttering and downpipes as the body corporate manager had not got the right quotes together for the roof repairs. The Applicant told her she would chase up the body corporate manager. At the AGM on 5^th April 2005 the body corporate got rid of AD Body Corporate and engaged BrisBay Body corporate as managers. The Applicant was present and did not mention her ceilings. Neither Ms Bretherton nor the committee were ever asked to take any action.

On one occasion she was invited inside unit 10 in 2004. The Applicant showed her what a mess the tenants had left. She did not draw Ms Bretherton’s attention to the ceilings but to the dirty floors and damaged furniture. When Ms Bretherton inspected the unit in February 2006, the only evidence of water stains was in the second bedroom. She carried out an inspection again in October 2006 with the loss adjuster, and noted that the ceilings were in the same condition as in February 2006.

The Applicant did not mention at the AGM on 5^th April 2005 that she was concerned about marks on her ceilings or that she was going to get her ceilings painted herself. The date of the invoice from the painter is 9^th June 2005, and the work would have been done shortly after the AGM.

Ms Brethreton knew nothing of the fax sent in April 2003. She denies that she ever told the Applicant that the roof had been repaired.

Elizabeth and Brett Hulin as co-owners of Unit 7 bought their unit from the Applicant in September 2006. They feel that the thing is blown out of proportion when dispute resolution processes are available and the Applicant has legal representation. They feel that the Applicant appears to have compromised the body corporate by painting over the water stains. They object to the fact that they should have to pay anything over $3000 when she has refused $3000. They say that all lot owners should pay their levies.

Sean and Rachel Clarke co-owners of Unit 8 say that the Applicant may have a grievance but she cannot just stop paying her levies. They purchased in April 2006. They say that common property is a common responsibility.

The body corporate made a submission through its solicitors, much of it repeating the submissions made by Ms Johnson and Ms Bretherton. It says that the fax of 28^th April 2003 was not received by the committee and in any event the fax did not ask the committee to take any action. As far as the committee is aware, this matter was not brought up again until November 2005. There is no record of the Applicant’s "numerous requests" on file.

The roof repairs referred to at Motion 3 of the extraordinary general meeting on 22^nd June 2004 were rust spots and not the repairs subsequently requested by the Applicant.

August 2005 was when the body corporate first received its first informal approach about these water leaks to ceiling, and the committee immediately decided to get quotations. The Applicant was to get one, and Brisbay to get another. The body corporate was not advised by the Applicant of a quotation she obtained from R and S in October 2005 for repair to two ceilings, and of photographs taken by R and S. The roof repairs were completed by the beginning of May 2006.

The body corporate continues to offer $3000 to the Applicant as offered by CHU insurers if it is found liable. There has been no evidence supplied about stains to walls as alleged by the Applicant.

The Applicant exercised her right of Reply. She says that her tenant brought the ceiling damage to her notice on about 24 April 2003, and she does not know why the body corporate did not get the fax from her lawyers. She says she did not get a building inspector’s report since she had lived in the building in another lot for a long time.

She says she did not attend the annual general meeting on 2^nd April 2004, and that requests to the committee were all made verbally through Emma Bretherton who was a friend on the committee. She asked Emma "all the time" what the body corporate was doing with respect to her damaged ceilings. Emma would always say that she was liaising with AD Body Corporate. The Applicant asked Emma to ring the chairman for her repeatedly. The Applicant also used to ring the body corporate managers who said they were looking into it. She did not raise it at the AGM on 5^th April 2005 because she thought the roof had been fixed by then as Emma had told her. Emma returned the mail and keys to her after she had been away and said "the roof is fixed, everything is OK," but she did not go into the unit because it was tenanted. She says the minutes of the meeting of 5^th April 2005 were not provided to her until 2007.

She did not inspect the unit until 19th September 2004 when the tenant had left and by that time the damage was quite extensive. She showed the damage to Emma and her sister, and asked Emma and AD Body Corporate what they intended to do. Emma said she would put in an insurance claim and get quotes for repair.

The Applicant approached 2 – 3 painters but was told that the ceilings were too damaged to paint, and needed replacing. She then got Mr. Furlanis to do it but he said it would need a lot of work. He did a quotation and she personally delivered it to AD Body Corporate. She also contacted CHU insurers at this time. They sent her a claim form and she then gave it to AD Body Corporate to press the claim. She says that "parts of her walls were painted so that the shade of colour would match," and that Ms Johnson and the loss adjuster would have seen new stains on their visit to her unit.

She denies that she was present at a committee meeting on 16th January 2006, when the committee decided to put the motion about roof repair to a general meeting, but says she voted by post. She is concerned that the antenna remains above her unit and that is one of the reasons for the leak. She wants the roof repaired as detailed in a new report which she has obtained from Terry Betteridge, formerly of Trade Squad.

The Applicant in Reply put forward more material and two more quotations. One dated 20^th April 2007 from Only Reno for internal repairs to her unit; and one dated 3^rd April 2007 from Terry Betteridge for roof repairs and internal repairs to Unit 10. The body corporate has not had an opportunity to make submissions on these reports.

She further seeks to amend her application by seeking orders for costs for additional reports, legal fees, and to be excused from paying contributions towards a sinking fund levy raised in February 2006.

DETERMINATION

In this matter there is no dispute that the body corporate must maintain the roof in good repair, since section 109 Standard Module requires that a body corporate containing buildings created under a Building Unit Plan of subdivision must maintain in good condition all common property, and all roofing structures providing protection where the land is not common property. This includes utility infrastructure such as gutters and downpipes which are common property (section 20 Act).

However, many of the facts and circumstances of the matter are disputed and I have considered whether the matter is not one that would be better having evidence tested on oath in a civil court. Section 270 Act allows an adjudicator to dismiss an application if satisfied that the dispute should be dealt with in a court or tribunal of competent jurisdiction.

The contradictory evidence is as follows –

Further to this line of thought, I have concluded that the matters in dispute relate only to the credibility or memory of the parties involved, and do not necessarily assist me in making a decision about the maintenance and repair of the roof, or repair of the Applicant’s ceilings.

In any application it is incumbent on the Applicant to prove the case, and this matter, details of which stretch back just over four years, I find the following curious –

In short, I find that the Applicant has not pursued her case with any vigour, and has relied on others to sort out her problems for her. It is undisputed that she did not once in four years propose a motion to a general meting or a committee meeting about roof repairs or her own ceilings. That is the only way by which a body corporate can undertake maintenance or repairs to common property and gain authorisation to spend body corporate funds. The Applicant might have made an application to this Office for the resolution of her dispute with the body corporate, well over three years ago.

The Applicant should also have pursued the matter of making a claim on the body corporate’s insurance as early as May 2003, although it is not possible to say whether or not that would have met with success. The copy of the incomplete claim form now provided by her is undated. I do not find that the fax sent to the body corporate by the Applicant’s solicitors on 28^th April 2003 is evidence of anything relating to this application. The written words are not legible and have been quoted to be "Managing agent advised he will take over", "Managing agent advised her will take over" and read at first by me as "Managing agent advised we will take over", nor is it known who wrote them. The fax merely states that that there is a water stain on the ceiling which might be caused by water ingress from the roof. The fax intimates that the Applicant’s solicitors were to advise the body corporate if any further action was required.

The body corporate became aware of certain defects in the roof on 13th May 2004 when Roof and Building Services(Qld) Pty Ltd, whilst quoting on the gutters, recommended to the body corporate managers that anti-corrosive primer be applied to heavy rust areas and that the roof be coated with a long-term barrier against deterioration. However, whilst a motion about this treatment was proposed on the agenda for the general meeting on 22^nd June 2004, the motion was ruled out of order since two quotes for the work did not pertain to the same works being done and were not comparable. The Applicant points to this motion as demonstrating that the body corporate knew about her complaints in May 2004 and was proposing to get the roof repaired at her request, but I find that this motion relates only to the third recommendation in the Roof and Building Services (Qld) Pty Ltd report on the gutters and downpipes. That company did not advise the body corporate that the defects in the roof were allowing water penetration.

However, I am of the view that the body corporate has failed to maintain the roof. As soon as something in the common property is no longer operating effectively or has fallen into disrepair, there is a breach of section 109 Standard Module.^[1] The body corporate says that it did not know about the leaking roof, but checking the roof should have been part of regular maintenance.

The body corporate admits that water could have entered the Applicant’s unit via the TV cable and antenna fixings. In November 2005, Trade Squad, at the request of the Applicant, recommended that the TV antenna be removed to the side of the parapet "as previous antenna." Trade Squad also recommended inter alia the removal of the existing box gutter and replacement with a new box gutter in order to provide adequate overflow. On 13^th February 2006, the body corporate voted in favour of a motion put by the committee for roof repairs to be effected above the Applicant’s unit. The Applicant voted in favour of the work being done. The work was completed by Mel Duncan by 30^th April 2006 and Mel Duncan provided a report. He repaired the klip-lock metal roof; both valley box gutters were repaired and flashed over; he rectified the water entering upper unit 10 via the antenna cable; and treated areas of rust over Unit 12. He checked the rest of the roof and repaired any visible problems.

In all the material provided to me there is no evidence that the roof above Unit 10 continued to leak after 30^th April 2006. This application is for the body corporate to repair the Applicants ceilings and to repay her the wasted painting cost of Mr Furlanis.

The body corporate sought a further report on the roof from R and S Trading (R and S) on 26th October 2006, after the lodging of this application. R and S also reported on the damage to the Applicant’s ceilings. R and S found that the Applicant’s ceilings bowed in the kitchen and the bedroom. The report states that roof timbers have "probably" dried out, shrunk and moved and roof sheets have sagged over Unit 10, and that damage in the kitchen was "more than likely" the result of the box gutter overflowing at some time. R and S recommended straightening up the roof and installing additional downpipes. Ms Johnson points out that this means that warping or sagging in the Applicant’s unit might therefore not be caused by water penetration at all. I do not find that this is a relevant distinction. If the roof timbers have become deformed to such an extent that damage has been caused to the Applicant’s ceiling, then the body corporate must put the ceiling right. The body corporate is responsible for maintaining common property (the roof) in a good repair and in "a structurally sound condition." (section 109(1) Standard Module.)

The Applicant has no comment to make about this report in her Reply stating it is a "non contentious issue." R and S revealed that it had been asked by the Applicant in October 2005 to quote for replacing water damaged ceilings within her unit in the kitchen and in bedroom 2. They quoted $5,692.90 for the work. The Applicant also found that mention of this report was a "non-contentious issue."

The Applicant paid $4,180 for Walter Furlanis to paint over the stained ceilings. His quotation, in comparison with the later quote from R and S which included replacing two ceilings as well as painting them, would seem remarkably high. The Applicant says that some walls also had to be painted to match the ceilings. Mr Furlanis refers to scraping and cleaning ceilings and making good; cleaning and repairing cracks in walls and repainting; painting the walls, and gloss painting the doors and architraves. It is clear to me that Mr Furlanis painted more than the water-damaged ceilings. He required the unit to be empty to do the painting. It would seem highly likely that this quotation is the cost of re-decorating a large proportion of the unit, if not the whole unit.

Mr Furlanis’ first quotation is dated 19^th September 2004 which is the same date on which the Applicant says she regained entry to her unit after the tenants had left. The Applicant says that she personally delivered this quotation to the body corporate manager. Mr Furlanis’ second quotation for the same work is dated 1^st June 2005, nearly nine months later. These two quotations lend weight to the claim of the Applicant that she had requested that the body corporate repaint her ceilings, and was waiting for some response. I find in this history that it is likely that matters within the knowledge of the then body corporate manager were not passed on or made known to the committee.

It is of course difficult to assess how much less the painting and repairs would have cost if the Applicant had pursued her grievance with any vigour. Nor is it possible to assess how much less Mr Furlanis’ bill would be had he painted only the damaged ceilings. What is clear is that the Applicant did not have authorisation from the body corporate to get the ceilings repainted, which of course was her right save in the case where she expected the body corporate to reimburse her. There was no agreement as to the choice of contractor, nor what works were to be performed pursuant to repairing damage caused by water ingress.

It might be that the Applicant thought that the body corporate manager would organise the reimbursement without more, and that might be why she did not raise the issue at or before the general meeting on 5^th April 2005. She decided to get her unit repainted believing, albeit mistakenly, that the roof repairs had been done. Perhaps her request to be reimbursed only became pressing when it transpired that the roof repairs had not been done, and the stains again appeared on the ceiling, about August 2005, a few months after the painting had taken place. In either case, the Applicant is not entitled to repayment of $4,180. To that end the application for item 3 fails. Item 4 which is dependent on the success of Item 3, also fails.

I find the reports about the state of the roof sought since the lodging of this application irrelevant to this claim in the light of there being no evidence of damage or water ingress to the Applicant’s unit since the end of April 2006, nor are further repairs to the roof sought by the Applicant. The body corporate must maintain the roof in the way it sees fit and votes at a general meeting. The body corporate might consider the replacing of the TV antenna as sought by the Applicant and considered a vulnerable fixing by Trade Squad.

However, the body corporate remains responsible to the Applicant for repairs to her ceilings occasioned by water ingress, and/or possibly by shrinkage or movement of the roof frame, before that time. Section 281 Act specifically allows an adjudicator to make an order that a person or entity, who has contravened the Act, should carry out stated repairs to an applicant’s property if the contravention has caused the applicant to suffer damage. The cost of carrying out the repairs must not be more than $75,000.

To this end, the body corporate committee should seek quotations for the repair and replacement if necessary of the Applicant’s ceilings as damaged by water ingress and/or timber shrinkage or sagging in the roof. The following reports about the damage already exist:-

Of the above quotations and reports, all commissioned by the Applicant save for the report by R and S on 26^th October 2006 which was commissioned by the body corporate, it is evident that not all contractors were asked to quote for repairing the bathroom, or had cause to note the bathroom ceiling as an area damaged by water ingress. There is consensus that there is staining on the kitchen ceiling, the ceiling of bedroom 2, and the ceiling in the lounge/dining room area. There is no evidence put forward by the Applicant of damage to the bathroom ceiling.

I therefore order that the body corporate repairs/repaints the ceilings and effects associated repairs/repainting in the kitchen, bedroom 2 and the lounge/dining room. Two or more quotations are required if the work is beyond the limit of major spending as required by section 104 Standard Module. The two or more quotations must be put as motions in the alternative, so that the body corporate may select the preferred contractor in accordance with section 42B Standard Module. The quotations must be obtained and put to a general meeting held within 6 weeks of the date of this order. Existing quotations may be used if still current and the committee wishes to put such motions to the body corporate. Item 1 of the application is therefore successful.

The Applicant’s lawyers in her Reply have referred me to certain sections of the Act. The references appear to be to section numbers since changed following amendments to the Act in 2003. (Section 227 Act concerns who may be a party to a dispute; section 223 Act concerns implied warranties on a purchase.)

They say at the foot of page 11 of the Reply that Regulation 95 ( which I take to mean Section 95 Standard Module) "does not apply where, as here, the Specialist Adjudicator may make an order under s.227 ( now s. 281) of the Act." Section 95 Standard Module concerns the power of the body corporate to fix contributions. This is not a specialist adjudication, but as far as I understand the argument, they are saying that an adjudicator may make an order which is just and equitable in the circumstances (section 276 Act) and therefore excuse a lot owner from paying a contribution towards a body corporate expense which is effectively a contribution to repair damage to that person’s property caused by the body corporate’s breach of the legislation.

This argument is not acceptable in that the Applicant is a member of the body corporate which is an entity from which she cannot separate herself. If it was just and equitable to relieve the Applicant from making a contribution towards a special levy or from paying a share of the repairs to her unit, would it be "just and equitable" for the repair bill to be met by the 11 other owners instead? Am I to look at which of the owners are culpable, if any, of failing to repair the roof? The committee at the time, some of whom are no longer lot owners? The chairperson or chairpersons over the relevant periods of time? The body corporate manager or former body corporate manager? These interesting areas of contemplation are outside the jurisdiction of this Office. There is no provision in the legislation for excusing any member of the body corporate from contributing to a body corporate expense, because of a level of culpability of another member of the body corporate. There is no method in this jurisdiction by which such culpability might be investigated or measured.

Likewise, when a body corporate passes a motion at a general meeting, all lot owners are bound by it, even if they personally voted against the motion. It is a motion of the body corporate and has effect as such. A body corporate might sue or be sued. A lot owner not happy with those proceedings cannot opt out of the process by saying they were never in favour of it, nor that they did not personally cause the damage alleged. Item 2 of the application therefore fails.

I note in this application, references to other motions of the body corporate for repairs and improvements, and for seeking legal advice, some of which the Applicant has refused to pay towards although they have been passed. I advise the Applicant that she is liable to contribute towards any levy raised by the body corporate following a resolution of the body corporate at a general meeting. Not to do so could result in penalty rates of interest being applied to her future contribution notices (section 99 Standard Module), and disqualification from voting at a general meeting. (section 49A Standard Module.)

The Applicant has been advised by this office that the Commissioner has no
jurisdiction with regard to compensation for loss of rent. Such compensation can only be awarded by a civil court. Further, an adjudicator has no power to award costs or legal fees save in the circumstances of section 270 Act where an application is dismissed for being frivolous, vexatious misconceived, or without substance, and costs of up to $2000 may be awarded to a respondent.

Number of Scheme:	13439
Name of Scheme:	Karri Court
Address of Scheme:	63 Northcote Street EAST BRISBANE QLD 4169

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Karri Court [2007] QBCCMCmr 341 (1 June 2007)