Elouera Tower [2008] QBCCMCmr 458 (10 December 2008)

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

I hereby order that, within three months, the committee on behalf of the body corporate must procure a written report, from a person with at least five years experience in the field who is an engineer or a builder with an open Building Services Authority licence, regarding whether work associated with rendering the building has significantly increased the risk of water entering the applicant’s lot. If so, the report must also outline any reasonable steps the body corporate could take to reduce this risk to a level at least comparable to prior to the rendering and the committee must obtain quotations for this work and submit those quotations for consideration by owners at a general meeting to be held within a further three months.

I further order that the inspection undertaken by the engineer or builder must be at a time reasonably convenient for the applicant to attend.

I further order that, within three months of this order, the body corporate must rectify the water damage to the applicant’s bedroom ceiling. This rectification must be performed by a tradesperson who holds a relevant Building Services Authority licence or is otherwise agreed upon between the body corporate and the applicant. Unless otherwise agreed, the body corporate must give the applicant at least seven days written notice of the time at which the rectification work is to be carried out.

I further order that the application is otherwise dismissed.

Elouera Tower Community Titles Scheme (Elouera Tower) is a 66 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes and lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Margaret Short, owner of lot 60 (applicant) seeking orders against the body corporate (respondent). The applicant says that rainwater is entering her lot and is seeking orders to require the body corporate to replace windows on the southern and western walls as well as repair damage.

The main grounds in support of the application, provided on behalf of the applicant, were to the effect that:

The body corporate was given an opportunity to provide written submissions. The main submissions by the body corporate were to the effect that:

All owners were given an opportunity to provide written submissions. A response from one of the owners was to the effect that the water damage was minor, was caused by freak storms, and that two new buildings in close proximity to Elouera similarly suffered water damage from the same storms.

The applicant exercised the right to inspect the submissions and then replied to those submissions to the effect that:

On 2 December 2008 I held a teleconference with the applicant and with the chairperson, Vic Lilienthal, on behalf of the committee. During this teleconference the chairperson indicated that no significant amounts of water are entering any units and an expert report indicates that new windows could not be guaranteed to be absolutely water proof with even new buildings having some water ingress in extreme weather conditions. However, the applicant said that she had been in the building for twenty-eight years and that significant water ingress had only occurred since the rendering of the building and removal of the exterior window sills. It was submitted that large quantities of water are flowing down the outside of the building onto the windows, filling the channels of the sliding windows, and then pouring into the apartment.

The present Accommodation Module commenced on 30 August 2008, replacing the previous Accommodation Module Regulation that operated from August 1997 (Previous Module) and references will be made to the present Accommodation Module or the Previous Module as relevant.

I am satisfied that the applicant suffered water damage to her window sills, curtains, and bedroom ceiling. This damage was specified in an insurance claim, was not strongly disputed by the body corporate, and has now been fixed. It seems more likely than not that this water damage was as a result of heavy rain combined with strong southerly winds as alleged by the applicant as the damage occurred concurrently with extreme weather conditions and no reasonable alternative explanation has been put forward.

The body corporate does dispute the applicant’s claim that a subsequent storm resulted in a reappearance of some staining of her bedroom ceiling. The committee submits that it commissioned MINC to carry out repairs in February 2008 to prevent rain water causing further damage of this nature. The concern is that the applicant’s ceiling was only repaired in April 2008 and that the applicant complains of further water ingress in June 2008 and a reappearance of some staining. Submissions from the body corporate are to the effect that the chairperson and building manager inspected the applicant’s unit and did not see any obvious damage. However, it is acknowledged that water had entered the unit above at some time in early June when the unit was unoccupied but that some cracks around windows and ledges of that unit were then repaired.

The applicant has clearly stated that her bedroom ceiling is again stained, although not as badly as previously. The chairperson’s statements at the teleconference in relation to this matter were very unconvincing. Firstly, the chairperson indicated that the stain was caused by matters unrelated to the windows, although it would be possible to infer from the body corporate’s written submission referred to above that water came through cracks around windows in lot 64 and then seeped down into the applicant’s lot. Secondly, the chairperson indicated that people with him when he inspected the applicants unit said they thought they saw a stain but he could not see a stain and perhaps his eyes were not as good as theirs and it was a very faint stain if it exists. Thirdly, the chairperson indicated that he was 93 years old and willing to defer to the better eyesight of the building manger but that he still drives and plays bowls and thinks he has good eyesight. In the circumstances I considered inspecting the unit or requiring photographic evidence. However, given the contradictions in the body corporate’s evidence and also the claim by the applicant that she obtained a quotation for fixing the stain from a tradesperson who was able to view the stain I consider the applicant has reasonably established that some further staining has occurred, albeit of a minor nature.

The body corporate has an obligation to maintain common property in good condition and, for a building format plan, maintain in good condition any doors, windows and associated fittings situated in a boundary wall separating a lot from common property (Accommodation Module 157, Previous Module 108).

There may be some debate over how water is entering the applicant’s lot but the evidence of both parties supports the inference that rain water has come through the exterior of the building during periods of heavy rain with strong southerly winds.

Evidence of water damage is not in itself sufficient to show that the body corporate has breached its duty to maintain in good condition. For example, buildings may be designed to withstand all weather events within a normal range but owners may need to tolerate damage or rely upon insurance if the body corporate has maintained all relevant areas in good condition but a freak storm results in damage. In fact, the report from Meecham Engineers Pty Ltd indicates that the Australian Standards require that a window be water tight for wind velocities that were lower than some of the storms experienced and that even new windows would be water resistant to a certain wind speed but would not be water proof.

Despite the above, the body corporate will not be excused from responsibility for damage by arguments that the body corporate is acting reasonably and avoiding unnecessary expenditure by careful monitoring with repair as problems occur. While there is a general responsibility for the body corporate to act reasonably there is also a specific responsibility to maintain common property in good condition.

The requirement to maintain in good condition has been contravened as soon as something in the common property is no longer operating effectively or has fallen into disrepair. It is no excuse to say the body corporate inspected regularly or used its best endeavours. Once something is shown not to be in good condition the statutory duty has been shown to have been contravened. This follows from a decision of the Supreme Court of New South Wales concerning a similar provision applying to owners’ corporations within that state.[1]

The body corporate concedes that water had entered the unit above the applicants in early June 2008 when the unit was unoccupied and on 24 June 2008 after heavy rain. The statement in the body corporate’s submission to the effect that the windows of the unit above the applicant were inspected on 24 June 2008 and cracks around windows and ledges were detected is sufficient for me to conclude that the body corporate had failed to comply with its obligation to maintain the exterior walls and windows in good condition. Based on this information it seems more likely than not that water came through these cracks into unit 64 and then down into the applicant’s unit. I conclude that the body corporate should be liable to repair the water stain on the applicant’s bedroom ceiling (Act, 281).

The applicant says that her unit has been her home for 28 years and that a little bit of water has come through the windows from time to time. This would tend to indicate that water coming through the windows is just because of extreme weather conditions and not as a result of the body corporate failing to maintain the windows. If so, changing the windows to minimise the amount of water coming through would be likely to be an "improvement" that needed to be authorised by owners in general meeting.

However, the applicant also says that since the building was rendered and the external window sills removed, water pours down from the ledge above and also pours through the windows in significantly greater quantities than previously. This raises a concern that the body corporate has, in having window sills removed and the building rendered, failed to maintain the weatherproof characteristics of the external walls and windows. If this is the case then there may be grounds to require the body corporate to perform work to remedy any defects caused by the rendering and removal of the window sills.[2] On balance, I accept the statements of the applicant that indicate water ingress is substantially worse since the building was rendered. The applicant appeared truthful, has direct experience of the events complained of, and has occupied the unit for over twenty years with complaints of excessive water entry only being made recently.

The applicant initially sought orders that the body corporate replace the windows. However, at the teleconference, the applicant emphasised that she wished the body corporate to engage an appropriately qualified person to review the situation to decide what to do and that she be present at the inspection. It is premature at this time to make an order requiring replacement of windows without an appropriate expert first exploring possible alternatives to rectify the situation and owners being given an opportunity to consider any appropriate options. In all the circumstances I am
satisfied it is just and equitable to require the body corporate to procure a written report from an independent expert in the field regarding whether work associated with rendering the building has exacerbated the risk of water entering the building and, if so, require owners to consider any relevant quotations to rectify the situation at the next general meeting. An appropriate expert is likely to be a person with at least five years experience in the field and either be an engineer or builder with an open Building Services Authority licence. I am further satisfied that it is appropriate to order the applicant be present when the expert inspects the building.

[1] Siewa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157, Brereton J, 6 November 2006 at paragraph 5.
[2] Refer Siewa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157, supra, at paragraph 4.

Number of Scheme:	10614
Name of Scheme:	Elouera Tower
Address of Scheme:	81 Sixth Avenue MAROOCHYDORE QLD 4558

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Elouera Tower [2008] QBCCMCmr 458 (10 December 2008)