Acacia Grove [2008] QBCCMCmr 43 (6 February 2008)

Number of Scheme:	22685
Name of Scheme:	Acacia Grove
Address of Scheme:	28 - 30 Ancona Street Carrara Qld 4211

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

I hereby order as follows –
1. that the body corporate shall pay to Taylor Christies, occupier of Lot 78, the sum of $1755.70 (One thousand seven hundred and fifty-five dollars and 70 cents) being reparation for Ms Christie’s goods which were damaged or destroyed by sewage water entering Lot 78 caused by the failure of the body corporate to maintain common property drains in good condition and in a structurally sound state of repair;
2. that the body corporate shall pay the sum of $1755.70 to Ms Christies within eight weeks of the date of this order.

This is an application dated 22^nd October 2007 but received by this Office on 8^th November 2007, by Taylor Christies (the Applicant) who is an occupier of Unit 78 in the scheme, against the body corporate for Acacia Grove (the body corporate) for an order that the body corporate pay the cost of damage to her property and loss of income following an overflow from a blocked sewage pipe.

Acacia Grove Community Titles Scheme 22685 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). There are 98 lots in the scheme created under a Group Title Plan of subdivision and four Group Title Plans of Re-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)).

The Applicant’s claim is for $11,480.00. Under section 281 Act, an adjudicator cannot make an order for the cost of carrying out repairs for more than $10,000. The legislation does not say that the claim may not be more than $10,000 but the order cannot be for more. The Applicant explains that she submitted a “rough estimate” of her loss. I therefore feel able to deal with this matter.

However, also pertinent is whether I have the jurisdiction to order reimbursement to the Applicant for the value of items of property damaged or destroyed.

Section 281 of the Act allows an adjudicator to order “the person who the adjudicator believes, on reasonable grounds, to be responsible” for a contravention of the Act or a contravention of the community management statement which has caused damage to an applicant’s property, to carry out repairs to the damaged property, or to pay the applicant a sum as reimbursement for repairs carried out to the property by the applicant (section 281(1) (a) and (b)). The example given in the subsection is where a waterproofing membrane in a roof which is the responsibility of the body
corporate leaks, and incoming water damages wallpaper and carpets in an owner’s lot. If the leak results from the body corporate’s failure to maintain the membrane, ie. a contravention of the obligation in the Act to maintain common property, then an adjudicator could order the body
corporate to have the damage repaired or pay an appropriate amount as reimbursement to the lot owner “ for amounts incurred by the owner in repairing the property.” In the example given, this would in my view, include replacement of the carpets and wallpaper, and the word “repair”
refers to the lot itself, which must be ‘repaired’ because of the water damage.

The new shorter Oxford English Dictionary defines “Repair” as follows –
“ the action or process of restoring something to unimpaired condition by replacing or fixing worn or damaged parts.”
“ renovate or renew by compensating for loss or exhaustion;”
“ remedy, put right ( loss, damage, etc.)”
“ make up for, make amends, make reparation for something.”
“ make amends to, compensate ( a person).”

I am satisfied that if the body corporate fails to exercise its powers, or contravenes its powers given under the Act, then an aggrieved owner or occupier has the right to have the dispute resolved at this Office. If the failure or contravention of those powers causes damage to the property, which includes the goods, of an owner or occupier, I am satisfied that I have jurisdiction to make an order that is just and equitable in the circumstances, including making an order for a fixed sum of money up to $10,000 to be paid for reparation of damaged property.

The Applicant is a self-employed interior designer and her original application also claims the loss of $1,944.50 from consultancy work and $264 for colour consultancy work arising from the damage to property connected to her work. There is no power under the Act to award general damages under civil law heads such as economic loss arising as a result of negligence. The power is prescribed only at section 281 and limited in its application to reparation for damaged property. I understand that this part of the claim has not been pursued by the Applicant.

The Applicant states that on 2^nd September 2007 she came home to find a “back up of sewerage” by which I believe she means sewage sludge, three inches deep on her garage floor which had “merged” through the garage damaging her personal property. The sludge was continuing to build up but she was unable to stop it. She called the on-site manager, Bonnie van Beek (Ms van Beek), who said she would call a plumber. The Applicant again contacted Ms Van Beek, and was told the plumber was on his way. The plumber arrived at approximately 4.30pm when the Applicant had made the discovery at 11.15 am. The plumber worked for “approximately three hours” and pulled tree roots from the drain.

The Applicant believes that the blockage was caused by tree roots in the main sewage pipe which services her unit and the unit next door and that both units suffered the back-up of sewage sludge on the same day.

The Applicant provides a letter from Adam Rae (Mr Rae), resident in Unit 79 next door, who says that he saw the extent of the flooding, and also suffered a back-up of sewage flooding into Unit 79 ”but not to the extent of Unit 78.” Mr Rae says that Unit 80 , his neighbour on the other side, also had some flooding on that day in the downstairs toilet and laundry. He says that he constantly has a bad smell of sewage in the downstairs toilet in his unit. Mr Rae observed the plumber put an electric eel into Unit 78’s downstairs drains and pull out tree roots. He also noticed that the electric eel was fed in for “meters” and that the plumber was there for half the day and late into the afternoon. He helped the Applicant move her things which took about 2 and a half hours and they were unable to save much at all.

The plumber is Bobbie Morrison (Mr Morrison). He runs a business called “Cost Less Plumbing.” He provides an undated statement that on 2^nd September 2007 he was called to the Applicant’s unit where he removed tree roots from the main sewer line which services the units on that side of the complex He put “at least 40 metres of electric eel clearing the roots that had blocked the main sewer line at the time of the blockage...” The two units to the left hand side of Unit 78 had also blocked up on the same day, and once the tree roots were removed, the sludge level ran away.

Mr Morrison provides a second statement dated 26^th September 2007, possibly for the Residential Tenancies Authority (the RTA) who were informed of the flooding, that he attended on 4^th September 2007 where he noted an “overflow throughout Unit 78”. The garage, downstairs bathroom and toilet was flooded with approximately 3 ins deep “sewerage”. He had to remove the downstairs toilet to gain entry to the main sewer, and then put a sewer snake down the drain to clear it and removed tree roots. Mr Rae also gives 4^th September as the day of the flood when writing on the Applicant's behalf to the RTA, but this date has now been confirmed as 2^nd September, and the flooding only occurred once.

The Applicant had noted masking tape over the drain holes in the bathroom floor, but had not known what it was there for. She now believes that the tape shows that the body corporate had previously had trouble with sludge backing up the sewage pipes, prior to the Applicant commencing occupation. She has found a letter on body corporate records showing that “there was trouble with drains” prior to her occupation. She provides a plumbing bill from McGregor Plumbing to the body corporate dated 24^th February 2005 showing that a plumber had been called to clear a blocked drain at Unit 78. The plumber noted. “Drain in downstairs toilet needs replacing.”

The Applicant wrote to the owner of the lot on 6^th September 2007. She provides photographs of floodwater in the garage and some of her possessions sitting in the flood. She also provides photographs of masking tape over drain holes. The list of damaged items amounts to a roughly estimated claim for $11,480.00, and is some of her stock-in-trade, clothing, electronic items and home furnishings.

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

Maricy Dalsnato, of Lot 38 sent a submission concerning damage to her own unit which has no relevance to this application and the events of 2^nd September 2007. It relates generally to the failure of the on-site manager to effect repairs.

Phyllis Telfer, of Unit 81, says that Ailsa Nowland, in Unit 80 told her that she had a sewage backflow through her toilet and laundry at Unit 80. There was a stench for a couple of days. She believes it has happened before and could happen again since the trees are still there.

Mr and Mrs Ralph and Marlene White, owners of Unit 24, but not min residence, sympathise with the Applicant.

Caretaker Ms van Beek says that about 12 noon on 2^nd September 2007 she got a phone call from the Applicant that sewage was coming out of the toilet and going into the garage. It was Father’s Day and difficult to get a plumber but she managed to get a plumber there by 3pm. The Applicant threatened her with being sued for compensation “every 5 – 10 minutes. “ The Applicant then required her as the letting agent to clean up the mess sending an RTA tenant’s remedy of breach form. She sent “two maintenance guys over.” They came back saying that there was nothing to clean up, having taken some photos of the garage and the damaged toilet.

The body corporate installed a new toilet for the Applicant since the plumber had destroyed the old one. Ms van Beek denies that this was a problem previously known to the body corporate. There was one complaint of a bad smell in February 2005, and she got that fixed by a plumber who used chemicals. On 20^th February 2007, there had been another report that the toilet would not flush and “it seemed to affect the whole block.” She called Aqua Plumbing but then got one of the “maintenance guys” to fix it and “the blockage had cleared up.” The plumber confirms that the blockage had cleared itself by the time he arrived and there was no blockage to remove. She says that there was no indication from the previous tenant about flooding or why he had put masking tape over the drain holes. She denies that there is a history of failure to maintain by the body corporate, and says that the Applicant should have had contents insurance.

She says the statement by McGregor Plumbing that the Applicant has found in body corporate records stating that the drain in the downstairs toilet needing replacing in Unit 78 was to do with “the downstairs floor/flood waste gully which has nothing to do with outside drains or pipes that blocked from tree roots.”

On 22^nd November 2007 the caretaker made a further submission by email that the tree roots come from the back creek which is Gold Coast City Council natural reserve land area so they are not “body corporate” trees.

Natasha Schuba, (Ms Scuba) of Unit 7, former chairperson, made a submission as a lot-owner. She was advised of the situation by registered letter from the Applicant on 12^th September 2007. The body corporate replied with the help of the body corporate manager on 19^th September 2007 saying it wished to discuss the matter with the Applicant and needed more information. She replied as chairperson and on paper headed “The Secretary”. The body corporate has submitted an insurance claim to its insurers CHU. CHU will accept damage to the plasterboard and building and plumbing works but says that the Applicant must pay for her own goods.

Ms Shuba “was appalled” to see the Applicant’s photographs and that the unit was leased out in such poor condition. The sticky tape over the drain holes must have been a warning for anyone, and Ms van Beek had failed as a letting agent to maintain the unit. The committee was not aware of the problem before, and the caretaker did not draw attention to it, although the caretaker attends committee meetings and provides reports.

Ms Shuba asked if the Applicant’s damaged items had been independently valued,

There is no submission from the body corporate as such although I understand there is currently a dispute in this scheme about the membership of the committee. I do not know if there is now a body corporate manager for this scheme, although a Natasha Bates (no company name) is referred to in correspondence dated 19^th September 2007 between the body corporate and the Applicant.

The Applicant exercised her right of Reply. She says Ms van Beek sent “two maintenance guys” the next day after the mess was already cleared up. She told them it was a health and safety issue, and that it should be cleaned professionally and they agreed. She denies threatening Ms van Beek. She says that her property was on the floor in the garage as she had only moved in 6 weeks before and she was waiting for her office furniture to arrive. For that reason the contents were also uninsured.

I wrote to the Applicant on 14^th December 2007 asking for further information and for some proof of the value claimed for her damaged goods. On 5^th January 2008, the Applicant responded with receipts and quotations for new items. The Applicant says that she has destroyed all the items, and not been able to save or resell any items, and that they had no scrap value. Only items made of non-porous materials such as glass, steel and plastic could be cleaned.

She also sent a sketch diagram showing that pipework (sewerage) from Units 78, 79 and 80 runs for 5 metres away from each lot and then into a main sewer which is about 43 metres from the main entrance. In addition, she forwarded a copy of the Gold Coast City Council Plumbing and Drainage Services plan which was only moderately helpful since unit 78 was not identified and the sewer connection from Lot 78 to the main, which is identified on the plan, is not shown.

In this matter the Applicant claims that a failure of the body corporate to maintain its drains has caused damage to her property, in that the drain in Unit 78 to the main sewer backed up on 2^nd September 2007 flooding the downstairs of the Applicant’s unit with an unpleasant concoction of greywater and sewage. Mr Morrison says that the garage, downstairs bathroom and toilet was flooded approximately 3 inches deep. Unit 79 and apparently Unit 80 suffered internal flooding on the same day, although there is no complaint from Unit 79 and no submission of any sort from Unit 80.

There is no submission from the body corporate. Caretaking service contractor Ms van Beek agrees that flooding occurred to the Applicant’s unit although she did not apparently view it herself. The fact that the Applicant’s ground floor flooded and the extent of the flooding is therefore not in dispute, but the submission from Ms van Beek is that such flooding does not demonstrate a lack of maintenance on the part of the body corporate, nor a lack of care by her as a caretaking service contractor or letting agent.

The scheme is created under five Group Title Plans of subdivision. In such schemes, each owner is responsible for the maintenance of his or her own lot, including the exterior walls, roof and pipes which relate only to that lot, and which are within the (garden) area of the lot. However, the body corporate is responsible for utility infrastructure, which is treated as common property, that is pipes, cables, wires and drains, through which “utility services” are carried, with certain exceptions set out at section 20 Act as follows -

(1) Common property for a community titles scheme includes all utility infrastructure forming part of scheme land, other than—

(ii) within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and

(2) However, common property does not include utility infrastructure positioned within common property if—

(a) its positioning is the subject of an agreement to which the original owner or the body corporate is a party; and

(b) under the agreement, ownership of the utility infrastructure does not pass to the original owner or body corporate.

cable television wires positioned in the service shaft of a multistorey building that is scheme land for a community titles scheme, if the wires remain in the ownership of a cable television provider

boundary structure, for a lot included in a community titles scheme, means a floor, wall or ceiling, other than a false ceiling, in which is located the boundary of the lot with another lot or common property.

There is evidence from the Applicant, Mr Morrison, and Mr Rae that the electric eel went in for several metres, Mr Morrison says “ at least 40 metres”. From the plans provided, this is clearly into land outside Lot 78. The blockage caused by tree roots occurred in the main sewer pipe outside the boundaries of lot 78. Also, there is evidence that at least one and possibly two other neighbouring lots were affected at the same time, so that the cause of the flood clearly occurred in an area of pipe to which all three units are joined, and not just in a pipe attached to lot 78. The exceptions to the general rule are therefore not established, and the body corporate remains responsible for utility infrastructure on common property.

This does not appear to be disputed, in that the body corporate has provided the Applicant (and the lot owner) with a new toilet at its expense.

Since the body corporate is liable to maintain common property in good condition and in a structurally sound condition, (Section 108(1) Accommodation Module), if the common property fails in some way, there is no need to prove that the body corporate has been negligent. The legislation creates almost strict liability on the body corporate to make sure that drains do not back-up and cause influxes of sewage into lot-owners’ homes. The alternative would be to say that “res ipsa loquitur”, the fact that it happened proves negligence on someone’s behalf. The Act does not require that negligence is proved. It states that the body corporate must maintain the common property.

The body corporate is also required to carry public risk insurance of the common property ( eg drains and sewers) to pay for damage to property to the extent of $10,000,000. (Section 135 Accommodation Module).

“Strict liability” has been considered by the Supreme Court of New South Wales in the context of a body corporate. In Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 (6 November 2006), the Court said –

“Section 62(1) (of the NSW legislation) imposes on an owners’ corporation a duty to maintain, and keep in a state of good and serviceable repair, the common property. That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do

“The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists [Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction [Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis, [162]-[163]]. .....

It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the s 62 duty [cf Ridis [177]].”

The body corporate cannot be expected to dig up the backyard as Ms van Beek says, but the fact remains that the body corporate is responsible for maintaining the common property, such as utility infrastructure, in good condition. Where it fails, then the body corporate, will be responsible. Further in this matter, it seems that there were signs that all was not right with the drains and sewers. Ms van Beek, as the letting agent, might have remarked upon the masking tape over the drainage holes in Lot 78, but she says she did not notice them before, nor did the previous tenant complain. It appears that no lot owners had mentioned the matter to the body corporate. Plumbers had visited the scheme in the last 12 months but a blockage had “ cleared up” and so there was no action. Such signs, including a sewage or musty smell are indicative of drains partially blocked by tree roots or by a blockage which allows water to flow through it but at a slower rate than that for which the pipe is designed. It is the body corporate which should check its drains regularly, perhaps on an annual basis, particularly in older schemes and where there are nearby trees, and not Ms van Beek who should do this, unless this is specifically a part of her contract.

(1) 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—

(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or

(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.

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 order the body corporate to have the damage repaired or to pay an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.
(2) The order can not be made if—

(a) for an order under subsection (1)(a)—the cost of carrying out the repairs is more than $75,000; or

(b) for an order made under subsection (1)(b)—the amount fixed by the adjudicator would be more than $10,000.

The Applicant’s claim for damage is for various household and electronic items, clothing and items used in her work, and 3 paintings. She has provided some photographs of the damage, some items clearly being shown steeped in or surrounded by the flood. From the photos it can be seen that a rug or fleece, a computer, a mattress, several red folders and two or more cardboard boxes containing unidentified items were severely wetted. A TEAC CD player, an amplifier and equaliser stack system and a TV are shown on the wet floor, at the edge of the most severe part of the flooding. The floodwater appears to come from under an interior door and out into the garage, the fleece/rug taking the brunt of the flooding, being positioned in front of the interior door on the garage side. I am given to understand that the bathroom/shower-room is on the other side of the door shown in the photographs and that it was from the toilet and shower wastepipes that the black and greywater backed up into the Applicant’s home.

The photos are taken with a Cannon Powershot A400, and the date on the photos is set at 1^st September 2006 (a year and a day out of the stated date of the incident) for the first 38 pictures and on 2^nd September 2006 for the last five pictures which show close-ups of three paintings. I understand that this does not determine the dates on which the photographs were taken, if the date has not been set by the operator. However, it would appear that the photographs were taken over two days, the first set between 1.43pm and 1.54pm and the second set between 3.13pm and 3.16pm. Those taken on the second day were taken according to the camera’s digital detailing between 5.53pm and 5.56pm.

I have studied all the photographs with great care, trying to match up the items in the photographs with the items claimed. I accept that it would have been impractical or impossible to clean a mattress and the fleece/rug. I accept that the Applicant’s work folders were wet and that papers and stationery would have been spoiled. The computer which was set on the floor appears to have taken in water. The computer screen was not apparently on the floor, but on a desk.

Clothing and books are also claimed as ruined, although there is no evidence of these in the photos. Cardboard boxes were soaked and it is feasible that books and clothing may have been in the cardboard boxes. I understand that motorcycle goggles have a foam protective infill, and that it might be unpleasant to use goggles which have been subjected to sewage sludge even if they could be thoroughly cleaned. This would also apply to motorcycle helmets although again, there is no evidence of damaged helmets.

The Applicant advises that she managed to save and clean non-porous items made of plastic, steel or glass. For this reason, I cannot see why the fish tank should be any the worse for the experience even though the timber frame was wetted. I also do not accept that sample pots of paint could have been damaged. Such pots are usually plastic and there is no evidence that the sludge water got into the paint itself.

The Applicant also advises that she disposed of all the items claimed (and some not claimed) and provides independent letters from persons who assisted her on that day. From those letters it seems clear that the Applicant did dump many items at the industrial bins on scheme land. What is not clear is whether each and every item dumped was in fact damaged beyond recovery. For example, whole boxes were dumped, the bottoms of which were soaked. What was in the boxes is not clear to me despite asking the Applicant to clarify her claim on two occasions. Further, the Applicant admits that the items listed in her claim, and the quantum accorded to them were “rough estimates.”

I can appreciate that it would have been a most unpleasant task to unpack the boxes and sift through the clothing that might be saved by washing, or which was ruined beyond repair, and that the Applicant was concerned about the health hazard of the sewage water and desirous of effecting the clean-up as quickly as possible. The temptation would have been to dump the lot, to which her witnesses attest.

I note that the Applicant explains that she was concerned about the health hazard and says “Anything that had a splash of sewerage on it was thrown out.” She also says that the disposal was made wearing gloves and “protective wear.” However, the photos provided by her clearly show the clean-up being effected by someone with bare feet standing in the floodwater, and lifting soaked boxes with bare hands.

In any application to this Office and particularly in claims such as this, it is essential that the Applicant proves the claim. This means that details of the loss need to be explicitly demonstrated as well as the Applicant can. If this was a claim to an insurer, I am of the view that the Applicant would have an uphill struggle in demonstrating the value of items which she has disposed of.

In this matter the Applicant has not presented her case clearly at all. She has left it up to me to trawl through old receipts, indicating that somewhere in the pile I will find the items to which she refers. For example, in the clipped together pile which demonstrates her claim for damaged motorcycle apparel, there is a receipt which appears to be for tyres. Tyres are not a part of the Applicant’s claim.

Nor do the receipts provided tally with the amounts which the Applicant claims, eg. “motorcross helmet - $500; motorcross helmet kids - $400” when receipts provided show a motor cycle helmet purchased on 10^th January 2007 at a cost of $450.00, and another motor cycle helmet not purchased until 2^nd November 2007 which cost $330. The Applicant has also written on the bundle of “motorcross” receipts - “ motorcross helmets x 3” when there are only two helmets referred to in the claim and in the receipts provided, one of them being the one purchased after the flood event. A belt described by the Applicant in the claim as costing $80, is shown on a receipt dated 29^th December 2006 as costing $39.00.

These discrepancies make it very difficult to assess the Applicant’s claim. It is not disputed that the Applicant has experienced a most unpleasant ordeal and that she has lost some of her possessions. I find however, that the Applicant has in the least, over-stated her case, and that she has not been able to substantiate all her losses.

For destruction of goods, the normal starting point for the measure of loss is their market value at the time of the loss.^[1] "Destruction" includes a "constructive total loss" where, although part of the property remains intact, it is in such a condition as to make repair uneconomic. This is not a “new for old” reimbursement such as under some insurance policies. Damages in civil court cases are awarded to a complainant as compensation for the actual loss sustained as a result of the infringing activities by a respondent. If possible, the position to be adopted is to put the complainant back in the position he or she would have been if he or she had not sustained the wrong.

“It may be difficult, if not impossible, to arrive at an amount with any kind of mathematical accuracy when assessing damages and, when impossible to determine with precision, the determination of damages must, to a large extent, be a rough and ready one. Assessment must be accomplished by the exercise of a sound imagination and the practice of the broad axe.“^[2]

To work out the market value of an item, the age and condition of the item is relevant. Generally where an item is up to one year old, and in good condition, I have made a reduction of 20% of the purchase price when demonstrated by a receipt to represent the fact that the item is secondhand. The older the item, the greater the percentage reduction as explained below, and depending on the type of item and its desirability on the open market.

Paintings – Items 7,8,9
The Applicant does not provide receipts for the three paintings which she claims each to have a value of between $800 - $1200. It should be possible to provide receipts from a gallery for such individual pieces if they have been purchased. I note that one of the paintings has “Christie” written on it as a signature, but the Applicant does not say whether the paintings are her own work. If they are her work, she would need to show that she is an artist who has her artwork for sale, in a gallery, or elsewhere, and that her work has such a price tag on it, even if she cannot demonstrate sales at those prices. Instead, the Applicant has provided a document from “Picture This” gallery, saying that the gallery has three paintings for sale in the gallery, two by established artist Amelia Farrugia, which contain similar colours to the painitngs belonging to the Applicant. I do not think that the Applicant is saying that any of the paintings in her possession are by Amelia Farrugia. Even if that was the case, the valuation of another painting by the same artist is not a basis for the claim. The paintings in the photographs need to be professionally valued. The valuation of artworks of similar colouring or style is completely meaningless.

Further, the Applicant has not demonstrated that the paintings are damaged. There is a scuff or tear on the lower side of one, but that is not consistent with a flood. It is possible that a long white mark on the floor beside the stacked paintings is white paint, possibly smeared off the painted edge wrapped around the frame. The Applicant does not explain in what way the paintings are damaged. They appear to be oils on timber frames, and it is inconceivable that the Applicant would have thrown out the three paintings had they been of the value alleged. The claim for the paintings therefore fails.

Fishtank – Item 23
There is no evidence provided that this item could not be re-used for the purpose for which it was built, or that it was irreparably damaged by the frame becoming wet with sewage water as shown in the photographs.

Mattresses(2) – Items 6 and 29
The Applicant has provided photographic evidence that one mattress was damaged. She has no receipts for the purchase of the two mattresses but provides a quotation from the Bedding Factory in Bundall for a new queen mattress and single mattress, totalling $458. I find the quotation very reasonable but the body corporate is only liable to reimburse the Applicant for her loss. I have to estimate the value of two second-hand mattresses. The Applicant says that the mattresses were approximately 2 years old and in good condition. However, these clearly were not mattresses which were being used on beds or for sleeping on at the time, since they were stacked against a wall in a garage. Perhaps they were for extra guests, or camping trips. This is of course conjecture.

Generally, a second-hand mattress has little market value because of the personal nature and unknown history of the item. Taking the quotation from the Bedding Factory as the value of new mattresses together at $458, I put a value of one half that value on the two mattresses, ie $229. By this, I am following a matter recently heard in the Commercial and Consumer Tribunal where three year old mattresses was discounted by 50%,^[3] to obtain their second-hand value. In that matter the mattresses were being used on beds when they were damaged by a leak from a roof. The difference between two and three years here is that the mattresses were not currently in use as mattresses, thereby suggesting that they had another and inferior purpose.

Rug and Briefcase – items 1 and 24
The Applicant has provided no evidence of the value of the rug or the briefcase, although I can see from the photographs that the rug was severely wetted, and was probably not a suitable item to wash. I wrote to the Applicant on 18^th January 2008 asking if she could give me some indication of the age and condition of the rug and briefcase. She replied on 24^th January 2008 that the briefcase was made of synthetic material and was about 7 months old. The rug was 6 months old and “as new”. I do nor know what the rug was made of, possibly it was a sheepskin as it is referred to as “fleece 4ft rug” in the application. It does not look to be the shape of a sheepskin but rectangular in shape, so perhaps it was a fake “fleece”, made of wool or man-made fibres. Since I am satisfied that these items were damaged, but have no evidence as to their worth, taking a consumer view of the items and noting that a similar “Colorado” briefcase costs $39.99 when new, and that a Flokati wool rug at KMart is $44.99 new, (both prices obtained on-line) I give $20 for the brief case and $30 for the rug. ($50)

Motocross apparel, 2 sets – Item 19
The Applicant provides receipts ranging in date from 2Ist October 2005 to 13^th November 2007, which includes not two but four sets of pants and jerseys, and one additional pair of pants. I am taking pants and a jersey to be “a set of apparel,” since there are separate claims for goggles, helmets and gloves. There is a receipt for $411.25 for two pairs of pants and two jerseys (respectively brown and yellow) purchased on 7^th December 2006; there is a receipt for $350.00 which is for bike pants, a jersey (and two pairs of Dirtpaw gloves) purchased on 15^th December 2006; and a receipt for $895 for a jersey and pants, (including a helmet, goggles and Flexair gloves) purchased on 10^th January 2007. An additional pair of “kids pants” cost $164.96 in October 2005.

I asked the Applicant in my letter of 18^th January 2008 to describe whereabouts this clothing was situation during the flood and why this clothing could not be washed. She replied that I should look at the photos of the bottoms of the boxes, from which I assume that the clothing or some of it was in the cardboard boxes which were soaked. She says that the clothing could not be washed as the pants and jerseys are of “synthetic material and suede and leather which is porous to the smell and contamination.”

The Applicant claims a round $1000 for the “2 sets motorcross apparel” . The total of the four sets detailed above is $911.25. The best I can do in such circumstances is to halve the value of four sets to represent 2 sets, being $455.62. Since the clothes were secondhand, their value must then be calculated on the day of damage. Taking the latest bought items, the clothes would have been 9 or 10 months old in September 2007. I am therefore taking 20% ($91.12) off their value bringing this head of claim to $364.50.

Further the Applicant provides receipts for a jersey purchased for $50 on 13^th November 2007 after the flood event. This cannot be part of the claim for apparel damaged in the flood event.

Fox Gloves, 3 sets - Item 20
There is a separate claim for three sets of “Fox” gloves for $90. The Applicant says there are no photos of the gloves or the goggles but they contain leather, foam and elastic which was contaminated by the sewage. The Applicant provides receipts as set out above for 2 pairs of “Dirtpaw” gloves and one pair of “Flexair” Gloves. I have researched these items and find that they are “Fox” Dirtpaw and “Fox” Flexair gloves, which was not immediately apparent. The three sets of gloves cost $105 and were purchased on 15^th December 2006 and 10^th January 2007 respectively, and were therefore 9 and 10 months old at the date of the flood. Taking the 20% discount, this brings the quantum to $84.

Fox Goggles, 2 sets – Item 21
The Applicant claims the loss of 2 pairs of “Fox” goggles at $160.00. The receipts provided show one pair of Fox goggles purchased for the sum of $90 on 10^th January 2007; one pair of unidentified goggles purchased on 21^st October 2005 for $61.64; and one pair of Oakley goggles costing $46.70 purchased on 1^st August 2006. Since the Fox goggles were 9 months old on the day of the flood, again the 20% discount for second-hand clothing applies, bringing the head of claim to $72.00. The remainder of the claim for Fox goggles is not substantiated.

Helmets (2) – Items 17 and 18
The claim is for one motorcross helmet at $500 and a “motocross helmet kids” at $400. The Applicant provides receipts as set out above, showing a helmet was purchased on 10^th January 2007 for $450. The only other receipt for a helmet is for one purchased for $330 on 2nd November 2007, again after the flood event. The Applicant advises that helmets contain foam and materials which make it impossible to clean after impregnation by sewage. There is no independent evidence that any helmets were damaged, although there is some independent evidence that all items were dumped. The helmet was $450 and about 9 months old. In respect of the helmet, this item does not carry the same rule-of thumb discount for second-hand household goods.

Since helmets are essential safety gear and have also been used by being fitted over the head, there are two features which very much reduce the second-hand market: the history of the helmet in relation to its safety features; and the hygiene concerns that the helmet has been used over someone else’s head and mouth. Further, the expert advice needed on buying a helmet is not available when buying a second hand helmet, as to the suitability of the helmet and the correct fit, and the first wearer of the helmet will to some extent mould the internal sheath of the helmet so that it fits only the first wearer perfectly. There are many articles available on the internet about the dangers of buying a used motorcycle helmet, and the recommendation that helmets are replaced every 18 months to 2 years.

Whilst second-hand helmets are for sale in the Trading Post and on eBay for example, the prices sought are very low, eg $60, in comparison with the cost of this particular helmet. Of course, I cannot compare like with like and do not know if the second-hand helmets currently offered for sale on-line are of a similar style and quality to that lost by the Applicant.

However, the warnings of buying second-hand safety gear seem obvious and universal. I therefore give a value to this helmet of $150, being one-third of its purchase value.

Belt- Item 22
The Applicant provides a receipt for one belt purchased on 29th December 2006 for $39.00. Her claim was for $80 for the belt. The damage was caused because the sewage water impregnated the elastic part of the belt. Since the belt was 9 months old, the 20% discount would apply. The value of the loss is therefore $31.20.

Electrical items
Computer – Item 5
The computer was an IBM and 5 years old. It was in excellent condition and also contained the Applicant’s personal files which were important to her. It suffered ingress of sewage flood water and has been dumped by the Applicant, apparently without seeking expert advice on whether the memory could be saved. The monitor was apparently on the floor of the garage as well, and when the flood occurred, it was picked up and put on a table. There is no sign of damage to the monitor which is as shown in the photo as being on a mounted base, and it does not appear that the operational parts of the monitor were damaged.

Computers notoriously lose value every time a new model appears and the market expands swiftly to outdate the previous model. I am unable to compensate the Applicant for the loss of her records which were worth probably far more than the computer to her. The Applicant understandably has no receipt for the computer but provides a quotation for a new ASUS computer and screen at $999.

New IBM computers range from $499 to more than $1063.00 according to IBM’s website. It seems to me unlikely that the Applicant would have been able to sell a 5 year-old computer for $499 had she sold it the day before the flood. Some insurance companies will not insure a computer which is more than three years old, and a five year old computer would have nominal value now. Since I have no knowledge of the original cost of this item to the Applicant, I estimate the value of the computer to be no more than $100.

I am not satisfied that the monitor cannot be used with another computer make or model of computer purchased by the Applicant.

Since a computer is one of the most expensive investments a householder is likely to make, and this computer was not a recently purchased item, it would be surprising if the Applicant did not have some insurance cover for it from her previous home contents. However, that may be a matter for the body corporate’s insurers to take up.

TEAC CD player/clock radio – Item 2
The Applicant advises that the player was about five years old and that the interior electrical circuits were damaged by water/sewage ingress. She discarded the CD player as is unable to confirm the model. From the photo it would appear to be the TEAC CRX250 or very similar model which is shown at www.teac.com.au as a superseded model. JB Hi Fi in Adelaide Street, Brisbane advise that such a model might have cost up to $100 five years ago, but that today, a similar model would be $50 - $60. I find the Applicant’s claim of $600, even at a rough guess, grossly overstated.

The Applicant has obtained a quotation of $449 for an LG mini stereo with DVD player. This seems to offer increased features from the TEAC CRX250 which was a top-loading CD player and micro alarm clock and radio with two-way speakers.

Taking the value of a five year old appliance which cost a maximum of $100, I value this item at 80% reduction of the purchase price, that is $20.00.

Cannon Camera - Item 16
The Applicant claims the complete loss of a Cannon camera at $600. She advised on 24^th January 2008 that the camera was one year old, and that she used it daily for work. A camera case, memory card and batteries were also destroyed and are not included in her claim. From this information, I have deduced it was a digital camera. There is no photographic evidence relating to the camera, and I do not know what model it was, or how much it cost.

The Applicant says that the photos of the flood in her unit were taken with a borrowed camera, also a Cannon. She has obtained a quotation for a Canon IXUS digital camera 9601S for $649. I have no way of knowing whether this is a camera similar in quality or performance to the camera lost by the Applicant.

In such circumstances, the Applicant has not substantiated her claim for the camera. I simply can not guess at its market value on 2^nd September.

Phillips TV – Item 4
The Applicant claims the loss of a television set at $500. The set was about five years old and in very good condition. It was a box TV and does not look from the photographs provided to be a very large set, in screen width. The set suffered sewage water ingress which affected the electrical circuits.

The Applicant does not describe her efforts to test the electrical circuits but disposed of the TV directly. Because of this, she says that she does not know the model or number of it. The Applicant does not advise how much she paid for the TV.

She has provided a quotation for a flat screen 81cm “Sharp” TV at $1196. This is nothing like the TV set which was discarded, being much larger, and of course, having a Liquid Crystal Display. The shop giving the quotation says that the Cathode Ray Tube TVs are an old product, which may be true, but they are certainly still available in any electrical shop such as Retravision or Harvey Norman.

This exercise is to try to compensate the Applicant for the value of the goods which she has lost, not to provide her with a sum equivalent to the cost of new items today, and in addition, new items which bear no resemblance to the items she has lost.

Five year old TVs, even in good working order, have very little value. Clearly this TV was not in use inside the family home, so at best it was a second or spare old TV. I put a value of $40 on the TV, which is the best I can do with the information provided.

TEAC Equilizer – Item 3
The Applicant claims $800 for the loss of the TEAC equilizer, which is shown in the photographs on the floor of the garage. It is a Hi-Fi stacking system in four parts. The Applicant says that sewage water got into the electrical circuits but it is not clear if by stating that the equalizer was the damaged item, whether the equalizer was on the bottom and therefore was the part which got the full brunt of the flood, which rose up to 3 inches in places. Again, the Applicant also does not advise if she made any attempt to have the item tested, but just discarded it and therefore cannot advise the model or number. She says it was about five years old and in good condition. She does not advise how much she paid for it.

She supplies a quotation for a new Sony AMP Built in Equilizer STRDG710 at $799. I cannot know whether this item bears any relation to the TEAC system which was damaged wholly or in part. I also am not advised if when one part of a four-part stacking system is destroyed, the destroyed part can be replaced.

TEAC’s website carries a list of products made by TEAC. There are similar systems but I can find nothing identical to the system in the photograph. I put a value of $80 on the sound system which is the best I can do with the information provided.

Boxes Samples - Item 10
The Applicant claims $200 for the contents of three “Sample boxes.” She provides 7 receipts all from Bunnings in Rocklea between 17^th February 2005 and 6^th December 2005. All receipts relate to sample pots of paint, with the exception of 2 packs of clothes hangers (20 hangers), a dust mask, three paint drop sheet covers, a plastic palette knife, a plastic saucer, a clothes-airer ($41.30), a convection heater ($44.98), bostik glue, and an extension lead ($14.98) .

I can see no reason why paint in plastic or tin pots could not have been saved. Further, it is unlikely that paint purchased in 2005 has not been used up to some extent. The other items on the receipts are also plastic or plastic coated, or consumables, and there is no evidence of their loss.

Sample kit, client profiles, designer kit and designer portfolio ($780) – Items 11,12,14,15 and 16
The Applicant claims $200 for client profiles, $300 for a designer portfolio, $200 for a designer kit and $80 for a sample kit, a total of $780. She provides receipts for various items purchased between 28^th June 2005 and 21^st January 2007 including colour boards, bubble wrap, and packaging, sealant, paint sample pots, 1 x drop sheet, knitting yarn, plaster coating and sanding equipment. These invoices total $344.37, which is far from the claimed $780.

As stated above I see no reason why paint in plastic or tin tubs would have been effected. Paint and knitting wool purchased in 2005 is likely to have been used up to some extent as consumables. The Applicant did not state which of these items makes up the kits, and heads of claim under this part. I therefore sought further information from the Applicant . By letter dated 24^th January 2008, the Applicant advised that the cardboard boxes which were soaked and thrown out contained laminates, stoneware and Corian samples which she has not claimed for. Such samples are usually provided free of charge from the manufacturer, but in any event, they are not part of the claim.

Also in the boxes were paint swatches, photos, brochures, fabric and timber samples and colour boards which are part pf the Applicant’s stock-in-trade. The actual value of such items is difficult to assess since it is the Applicant’s effort in assembling the colour boards and the materials which has been lost. The items had no market value to anyone other than the Applicant.

Photo albums – Item 26
The Applicant claims $120 for six destroyed photo albums. She provides an invoice dated 22^nd December 2006 which relates to a pack of 6 photo albums costing $387.00. The Applicant confirmed by letter dated 24^th January 2008 that the photo albums were in the boxes which were soaked from the bottom and which appear in her photographs. The photo albums contained family photos which were of sentimental value and irreplaceable.

Sadly, the sentimental value of the item lost cannot be taken into account in this forum. It cannot be recompensed in monetary terms. The photo albums would have had no value on the open market as a pictorial record of the Applicant’s family. As a global sum recognising the albums themselves were lost, the recompense under this head is $60, at $10 each.

Stationery – Item 13
The Applicant claims $150 for destroyed stationery. She provides invoices from 11^th June 2004 to 25^th October 2007. The invoices total $507.07. I do not know which items on those dockets she claims to have been destroyed in the flooding. One item, dated after the flood, appears to be for a bill for a printing service and is not a receipt. Some of the items on the receipts relating to 2004 are for A4 copy paper which is likely to have been used up over three years later. I accept that cardboard folders containing papers and records were damaged.

I asked the Applicant to provide further detail about the stationery. She explains that they were 7 years of client profiles, hard copy files, schedule of fee applications, supplier information packs, advertisements, tax records, personal records, business records, colour swatches, client briefs, envelopes, A4 and A3 paper, tracing paper and stamps.

I find it almost impossible to place a value on the Applicant’s work and personal records. It is clearly more to her than the value of the paper it is recorded on, but cannot be compensated for monetarily in this forum. This is not a claim for damages. It appears some personal records survived, as the Applicant was able to provide so many original receipts in support of her application.

For the loss of the folders and giving a global amount, the recompense under this head is $50.

Books – designer, children’s and encyclopedias ($760) – Items 25, 27 and 28
The Applicant claims she lost 8 designer books ($80), 7 childrens books ($80) and a set of encyclopedias ($600). She does not name the books which were damaged. She does provide however a receipt for books purchased for $576.42 on 29^th December 2007, after the flood event, none of them being encyclopedias. The books purchased on 29^th December 2007 were also duplicated or triplicated so that two copies of a book about a bear were purchased, three copies of “Alberta,” and two copies of a book about a flowergirl. Eight of the books appear to be books about design, and may be replacements for the lost eight books. If so, the replacement value for the lost books, was $414.20. Her claim for the loss of secondhand books for $80 is therefore reasonable.

A quotation dated 4^th January 2008 from Dymocks booksellers gives the replacement cost for “Compton’s Britannica” as $895. “Compton’s by Britannica” is a set of 26 hardback books according to the writer of the quotation whom I contacted by telephone. There is no photographic evidence that 26 volumes of Compton’s by Britannica were destroyed, however the Applicant advises that the books and the encyclopedias were in the bottom of the boxes which were soaked and which appear in the photographs.

The Applicant advises that the books were “2 – 5 years old”. Encyclopedias are reviewed continuously and out of date encyclopedias may not have the market value of a revised set. They were up to five years old. I have no evidence at all of the the second hand value of a set of good young adult encyclopedias. I am putting a value of $10 per volume on these books, as per the design books. The unnamed children’s books, I value at $5 each. The total for books and encylcopedias is therefore $375.

Order
I order that the body corporate pays to the Applicant the sum of $1,755.70 and I shall give the body corporate up to 8 weeks in which to effect this payment since I am given to understand that normal management procedures in this scheme may currently be disrupted. The body corporate may like to address its insurers in connection with its public risk liability in connection with the failure of common property, and the payment of this sum to the Applicant.

The Applicant is of course at liberty to press any further or additional remedies which she may have against the owner or the letting agent under the terms of her tenancy agreement; or against the body corporate for her loss of income, in the civil courts.

Finally, I note that there seems to be a view held by residents that the caretaking service contractor is responsible for repairs to units. The legislation provides that the owner must maintain his or her lot in good condition and that the body corporate must maintain the common property. The responsibility is therefore not that of Ms van Beek unless she has been specifically asked by a lot owner or the body corporate to provide such a service eg. by making inspections and obtaining quotations. It is only the owner however who can authorise repairs to his or her own unit, and only the body corporate which can authorise maintenance and repairs to common property.

^[1] The Laws of Australia - Geoff Masel (1993 – 2001), Dr Helen Grant (2002 – 2003) Dr Paul Vout ( 2006 - )
^[2] Grenier,.F.M MONETARY RELIEF – DAMAGES (2002)
^[3] CLIFFORD V GOLBY [2007] CCT BD665-05 [16 April 2007]

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Acacia Grove [2008] QBCCMCmr 43 (6 February 2008)