Clear View Court [2008] QBCCMCmr 129 (17 April 2008)

Number of Scheme:	11289
Name of Scheme:	Clear View Court
Address of Scheme:	9 South Esplanade BONGAREE QLD 4507

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

I hereby order that, within one month, Terence Manttan, owner of lot 5 (respondent) must pay Valerie Galloway, owner of lot 3 (applicant) the amount of $308 that must be used by the applicant for carrying out repairs to the water damaged kitchen ceiling of her lot.

I further order that the application is otherwise dismissed.

Clear View Court Community Titles Scheme (Clear View Court) is a 6 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Valerie Galloway, owner of lot 3 (applicant) seeking orders against Terence Manttan, owner of lot 5 (respondent). The applicant is seeking restitution from the respondent for the cost of repainting her ceiling due to water damage, and the reimbursement of the costs of achieving this resolution.

The main grounds in support of the application, provided on behalf of the applicant, were to the effect that there are stains to the ceiling and cornice of her kitchen that she thinks results from a burst hot water system in the respondent’s unit.

The respondent states that he has never doubted that the applicant has experienced a minor water mark on the ceiling of her unit nor the possibility that this damage could perhaps have occurred as a result of the bursting of his hot water system. However, the applicant says that such an occurrence would normally be claimable on the unit owner’s contents insurance and that if she preferred to claim the cost from him then one would have expected a timely written request allowing him to submit the information to his own insurer. The respondent disputes the claim for additional costs including travelling to her unit to take photographs of the damage.

The applicant has responded saying that the body corporate and respondent have been uncooperative in providing details of the cause of the water damage and that this has resulted in the delay.

I requested the applicant provide quotations for the cost of performing the work. A quotation from Reavley’s Painting Service was for $513.70. A quotation from Bribie Painting Service was for $308.00. I provided copies of these quotations to the respondent. A further submission from the respondent was to the effect that there has never been a dispute on the subject matter, he does not understand why the applicant did not lodge an insurance claim herself, but that now for the first time he is in a position to lodge a claim with his own insurer as part of the original claim of over two years ago.

Section 229 of the Act provides as follows:
Exclusivity of dispute resolution provisions
(1) Subsection (2) applies to a dispute if it may be resolved under this

chapter by a dispute resolution process.
(2) The only remedy for the dispute is—

(b) the commissioner dismisses the application under part 5.
(4) Also, subsection (2) does not apply to a dispute about the adjustment
of a lot entitlement schedule.

The above provision was considered by the Supreme Court and then by the Court of Appeal in James v Body Corporate for Aarons Community Titles Scheme 11476.[1] This involved an action by an owner against the body corporate seeking an order to require the body corporate to rectify water leaks. The Court of Appeal confirmed that due to section 229 the plain intention is that an adjudicator is to have exclusive jurisdiction to make orders of the kind prescribed relevantly in section 276 and 281 in disputes under section 227.[2]

The District Court has subsequently considered section 229 and determined that, while the section could be expressed in clearer terms, it seems the intention is to require remedy for "any" dispute between relevant parties be sought under Chapter 6 of the Act if the dispute may be resolved by the dispute resolution process prescribed under the Act.[3] This District Court decision related to a commercial scheme under which a claim was made relating to a failure of the body corporate to prevent water leakage into the unit.

The present dispute therefore appears to be properly within the jurisdiction of this office and has been referred to me for adjudication under section 248 of the Act.

I am satisfied from submissions and photographs provided by the applicant that her ceiling has been stained. The submissions of both parties satisfy me that it is more likely than not that this damage resulted from water leakage from the respondent’s burst hot water system.

The respondent’s submissions indicate that he was not present when his hot water system burst. No details have been provided of the cause of the hot water system bursting but I note that the respondent lodged an insurance claim rather than take proceedings against any specific person. It seems more likely than not that the respondent has at least technically contravened requirements that he maintain the hot water system in good condition, even if there were no obvious faults with the system (Standard Module 109(3)(b), 120(2)).

The respondent suggests that the applicant could simply make a claim to her own insurer. If that had occurred then the applicant’s insurer could have liaised with the respondent’s insurer to determine who should accept responsibility for the damage. However, the applicant has instead elected to seek compensation directly from the person who she considers responsible for the damage and to allow that person to involve their own insurer if desired.

It appears that the dispute has taken an inordinate length of time to be resolved due to poor communication between the applicant, the respondent and the body corporate. However, by bringing this application, the applicant has satisfied me that it is more likely than not that the respondent failed to maintain his hot water system in good condition as required by the legislation and that the applicant suffered water damage to her ceiling as a result.

An adjudicator has specific powers to order a person responsible for a contravention to carry out stated repairs to damaged property to an amount of up to $75,000 or reimburse a person for repairs up to an amount of $10,000. Based on quotations provided, I am satisfied a reasonable cost of repairs to the ceiling is $308. Rather than requiring the respondent to carry out the repairs it seems preferable that the respondent simply pay this amount to the applicant to facilitate the applicant having the repairs carried out herself. It is up to the respondent to decide if he wishes to provide a copy of this order to his insurer and make a further insurance claim for this amount.

The applicant has also sought the costs of making her application. However, the Act establishes low cost and informal dispute resolution procedures. There are very limited circumstances in which adjudicators are authorised to make costs orders (Act 270(3), Act 280). There is no provision authorising an adjudicator to make a costs order in the present circumstances.[4]

[1] James v Body Corporate Aarons Community Titles Scheme 11476 [2002] QSC 386 and James v Body Corporate Aarons Community Titles Scheme 11476 [2003] QCA 329.
[2] Sections 227, 229, 279 and 281 being renumbered from 182, 184, 223 and 227.
[3] Penberg Pty Ltd v Body Corporate for Market Town Community Titles Scheme 2052, [2006] QDC at paragraph 18.
[4] Refer Woodrange Pty Ltd v. Le Grande Broadwater Body Corporate [2004] QDC 215, McGill DCJ, 19 July 2004 at page 225.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Clear View Court [2008] QBCCMCmr 129 (17 April 2008)