Broadwater Tower [2009] QBCCMCmr 369 (30 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0360-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9041
Name of Scheme:	Broadwater Tower
Address of Scheme:	17 Bayview Street RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Katharine Atkins, the owner of Lot 82

I hereby order that the application for an order by Katharine Atkins, the owner of Lot 82 against the body corporate for Broadwater Tower community titles scheme 9041 seeking outcomes: That the Body Corporate remove the pipework on the common property adjacent to Lot 82 and reseal all holes in the building ("the works"). That the Body Corporate engage an appropriately qualified contractor approved by the Applicant for the performance of the works. That the works be supervised by an engineer appointed by the Applicant and carried out to a standard satisfactory to that engineer. That the Applicant will grant reasonable access to the Body Corporate's contractor to allow the performance of the works. That the Body Corporate reimburse the Applicant for the costs of the engineer appointed to supervise the performance of the works. That the Body Corporate indemnify the Applicant against any property damage that might occur to Lot 82 during the performance of works. That the Body Corporate indemnify the Applicant against any claim for personal injury that might occur during the performance of works. That the terms of this order be displayed on the Body Corporate's notice board for a period of not less than 7 days. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0360-2009

“Broadwater Tower” CTS 9041

The scheme
“Broadwater Tower” community titles scheme 9041 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application made on 17 April 2009 is by Katharine Atkins, the owner of Lot 82 (Applicant) against the Body Corporate seeking outcomes:

1. That the Body Corporate remove the pipe work on the common property adjacent to Lot 82 and reseal all holes in the building ("the works").
2. That the Body Corporate engage an appropriately qualified contractor approved by the Applicant for the performance of the works.
3. That the works be supervised by an engineer appointed by the Applicant and carried out to a standard satisfactory to that engineer.
4. That the Applicant will grant reasonable access to the Body Corporate's contractor to allow the performance of the works.
5. That the Body Corporate reimburse the Applicant for the costs of the engineer appointed to supervise the performance of the works.
6. That the Body Corporate indemnify the Applicant against any property damage that might occur to Lot 82 during the performance of works.
7. That the Body Corporate indemnify the Applicant against any claim for personal injury that might occur during the performance of works.
8. That the terms of this order be displayed on the Body Corporate's notice board for a period of not less than 7 days.
   

The Applicant submits she became the owner of Lot 82 in November 2007. She alleges that the pipe work and core holes was carried out by a former owner of the Lot in or about May 2005, and that the committee became aware of the work or should have been aware of the work at this time. The Applicant states that if the work did not comply with Body Corporate requirements, the committee should have notified the then owner to rectify. The Applicant says the committee, in its letter dated 25 February 2008, directed her to remove pipes from common property and to reseal core holes to a standard satisfactory to the Body Corporate’s engineer.

As background to the dispute, the Applicant provided a copy of correspondence between herself and Challenge Strata Management (Body Corporate Manager) on behalf of the committee:

• On 25 February 2008, the Body Corporate Manager wrote to the Applicant about unauthorised air conditioning pipe work on common property. It was requested that the pipe work be removed from common property and the core holes in the column between the firehood and the main bedroom balcony be resealed. The Applicant was informed that an engineer would be engaged at her cost to direct and certify the work.
• On 13 March 2008, the Applicant responded that she did not make the claimed unauthorised improvements and did not carry out any core drilling to any columns.
• On 24 April 2008, the committee apologised for claiming the Applicant made unauthorised improvements saying that the matter needs to be rectified and costs would be between the previous owner of the Lot and the Applicant.
• On 10 May 2008, the Applicant sought information from the Body Corporate as she intended to seek an indemnity from the previous owner for the cost of any rectification work.
• On 22 July 2008, the committee provided the requested information.
• On 23 July 2008, the Applicant stated she feels compelled to commence legal proceedings.
• On 1 December 2008, the Body Corporate Manager referred to a conciliation agreement and requested that the Applicant nominate an engineer so that the Body Corporate can proceed with the removal of the pipe work.
• On 19 December 2008, the Body Corporate Manager gave the Applicant notice that a nomination of an engineer be made within 30 days.
• On 29 December 2008, the Applicant responded that she has not determined to make an application to the Body Corporate for air conditioning and that although the existing pipe work would be of no use in any new air conditioning installation, there would be a cost saving to the Body Corporate if she choose to proceed with the construction.
• On 3 February 2009, the committee expressed concern about the delay in resolving this matter.
• On 5 February 2009, the Applicant sought confirmation that the Body Corporate indemnify her for the cost of an engineer being in attendance when work is performed and for any damage to Lot 82 caused by the Body Corporate’s contractor.
• On 6 March 2009, the Body Corporate Manager referred to a conciliation agreement stating the Body Corporate will not be paying for the attendance of an engineer.
• On 24 March 2009, the Applicant informed the Body Corporate that she would be making a dispute resolution application.
  

Submissions to the Commissioner
The Commissioner provided a copy of the application to the Body Corporate Manager for distribution to the owner of each lot (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

The owner of Lot 7 supports the committee. The owner of Lot 45 believes the pipe work should remain given the time since the installation was made as the matter seems to be more about aesthetics rather than any structural concern.

The Body Corporate Manager made submissions on behalf of the committee setting out relevant parts of a conciliation agreement dated 18 August 2008 saying the Body Corporate has attended to its obligations under the agreement, but that the agreement cannot be completed as the Body Corporate has been frustrated by the Applicant. It is stated the Applicant sought extensions while she decided whether or not she wished to install another air conditioner which would utilise the infrastructure that has been agreed to be removed by the Body Corporate. The committee says the reference to costs for the attendance of an engineer in the 5 February 2009 letter was from “out of nowhere”; the Applicant got what was sought through the conciliation process; the work is to be undertaken on common property; and the application is frivolous, mischievous and misconceived. The committee provided a copy of page 3 of the minutes of its meeting dated 19 November 2008 indicating (under ‘Atkins (U82) – Unauthorised Improvement’) that it was resolved: “to unreservedly withdraw its letter of 25/02/08 to the owner of Unit 82”; and “to bear the cost and responsibility of removing pipework on common property adjacent to Unit 82, and to return the common property as near as practicable to its original condition, with the work to be carried out to the satisfaction of an engineer nominated by the owner of Unit 82.”

The Applicant made a written reply to submissions and provided a photograph of the Broadwater Tower building pointing to Lot 82 and to pipe work on the exterior of a wall of windows. The Applicant states the pipe work consists of an outer PVC conduit pipe housing pipes and cabling which were connected to an air conditioning unit situated within Lot 82 and a motor/compressor situated on the balcony of Lot 82. She says the manner of the removal of the pipes from the interior of Lot 82 and the repair of the opening in the exterior of the building are a concern. She adds given that the committee did not respond to her allegations about the construction of the pipe work, the allegations should be interpreted as matters of fact. The Applicant made submissions about the conciliation agreement giving reasons for deferring execution of the agreement. She denies submissions by the committee about responsibility for the costs of an engineer and about the application being frivolous, mischievous and misconceived. The Applicant admits that the conciliation agreement was made in the terms sought.

Adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
An adjudicator may make an order to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act).

Decision
Conciliation agreement
While the application does not seek an order regarding compliance with the conciliation agreement seemingly signed in August 2008, various comments are made as to whether the agreement has been complied with and as to what was contemplated when the agreement was made. While an adjudicator may make a consent order (s 252I, Act), there is no jurisdiction to enforce a conciliation agreement. An adjudicator is not bound by any expectations, undertakings or agreements made in the conciliation process or the conciliation agreement.

Location of the pipe work
It does not seem to be in dispute that the pipe work mentioned in the first outcome is on common property.

The lots and common property in the scheme are shown on Building Units Plan 6177 which was registered by the registrar of titles in 1984. When the Act commenced in 1997, a building units plan was taken to be building format plan of subdivision under the Land Title Act 1994 (LTA) (s 331(2), Act). A building format plan defines land using the structural elements of a building, including, for example, floors, walls and ceilings (s 48C(1), LTA). Except to the extent permitted under a direction given by the registrar, the boundary of a lot created under the plan and separated from another lot or common property by a floor, wall or ceiling must be located at the centre of the floor, wall or ceiling (s 49C(4), LTA).

On the basis of BUP 6177, the provisions of the LTA and the photograph provided by the Applicant I am satisfied that the pipe work mentioned in the first outcome is on common property.

Removal of the pipe work
I am satisfied from submissions that the Body Corporate has agreed to remove the pipe work from common property and to carry out rectification work to common property. While the resolution of the committee at the November 2008 meeting does not specifically refer to resealing holes, I am satisfied that the rectification work contemplated by the resolution includes repairing any holes on common property related to the installation of the pipe work. There have not been any submissions questioning the scope of the approved rectification work.

The circumstances relating to the installation of the pipe work is not a matter that is relevant in this determination. The Body Corporate has accepted responsibility to carry out work to remedy that part of common property affected by the installation. The Body Corporate’s functions include administering the common property for the benefit of the lot owners (s 94, Act). Its duties about common property include administering, managing and controlling common property reasonably and for the benefit of lot owners (s 152(1), Act). The Body Corporate must maintain common property in good condition (s 159(1), Standard Module). I consider the Body Corporate has demonstrated it is willing to do the work mentioned in the first outcome. In this regard, I do not consider there is a dispute about this matter.

It is a matter for the Body Corporate to engage an appropriate person to do this work; it is entitled to have opportunity to manage and control the rectification process. There is no material to suggest that the Applicant should be able to exercise some of form of control with respect to the person who performs the work. For example, it is not demonstrated that the Body Corporate intends to engage a person without appropriate skills, expertise or qualifications to do the work, or that there is another reasonable basis for making an order in the terms of the second outcome being sought. In the circumstances, I am not satisfied that the Body Corporate intends to do something which would necessitate such an order. While the work may be adjacent to Lot 82, it is on common property and the Body Corporate is obliged to maintain common property in good condition. No material has been presented indicating that the Body Corporate plans to do work on Lot 82 or that it is obliged to do so. For these reasons, I have dismissed the second outcome sought.

Outcomes 3 to 8
The third and fifth outcomes relate to an engineer supervising the work mentioned in the first outcome sought. The Applicant argues that an engineer she appoints should supervise the work and that the Body Corporate should bear the costs of the engineer. It is apparent from the 25 February 2008 letter that the committee considered the engagement of an engineer would be necessary and that this cost should be borne by the Applicant. The committee has demonstrated it subsequently resolved to withdraw this letter. I do not consider the Applicant has provided any justification for involving an engineer in the way sought. The Body Corporate has stated it is willing to do work and there is no reason to suggest that the Body Corporate will have work carried out on common property contrary to its legislative duty. Even though the committee initially indicated to the Applicant that an engineer would be engaged, I am not satisfied from the material that it would be reasonable to expect that an engineer would ordinarily supervise work of the nature mentioned in the first outcome, and that the Body Corporate has refused to engage an engineer when it would be reasonable to expect it to do so. The Applicant has not shown that the work would have any effect on Lot 82 or the common property adjacent to Lot 82 to necessitate the involvement of an engineer.

The fourth outcome is a statement about access to Lot 82. I am not satisfied the circumstances justify an order of this nature. Section 163 of the Act makes provision for a person authorised by the Body Corporate entering a lot to carry out work.

The sixth and seventh outcomes seek orders to indemnify the Applicant. I do not consider there is any dispute about these issues. The Applicant has not shown that she has sought clarification or agreement from the Body Corporate about these issues, and that it is reasonable to expect undertakings of this nature before a person authorised by the Body Corporate carries out the approved work.

There is no basis in the circumstances for making an order of the nature of the eighth outcome sought.

For these reasons, I have dismissed these outcomes sought.