The Palms Apartments [2009] QBCCMCmr 428 (30 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0371-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13323
Name of Scheme:	The Palms Apartments
Address of Scheme:	11 Lather Street SOUTHPORT QLD 4215

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

D Fong, the Owner(s) of lot 1

I hereby order that the application for: “An order for the Body Corporate to reimburse me the sum of: $407.00 (Invoice 1573) $1,303.50 (Invoice 1600)” is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0371-2009

“The Palms Apartments” CTS 13323

The Palms Apartments community titles scheme (“The Palms Apartments”) consists of 9 lots and common property. The community management statement (“CMS”) for The Palms Apartments indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (“Standard Module”) applies to the scheme. The Department of Environment and Resource Management records show the scheme is registered as Building Units Plan 1791.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (“the Act”), this application was made by David Fong, Owner of Lot 1 (“the applicant”) on 21 April 2009. The applicant sought orders against the Body Corporate for The Palms Apartments (“the respondent”) in the following terms:

An order for the Body Corporate to reimburse me the sum of:

$407.00 (Invoice 1573)

$1,303.50 (Invoice 1600)

PROCEDURAL MATTERS

In February 2009, the parties participated in a conciliation session with the Commissioner’s Office pursuant to section 248(3) of the Act. Unfortunately, conciliation did not resolve the matter. Subsequently, this application was lodged.

Under section 243 of the Act, a copy of the application was provided to the respondent and the Body Corporate Committee (“the committee”), with an invitation to the committee and all owners to respond to the matters raised by the application. Submissions were made by the Body Corporate Manager, Mr Ian Leslie. The applicant inspected the submissions received and made a written reply.[1]

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The applicant is seeking reimbursement from the body corporate for the costs of repairing a water leak in the cold water pipe. The facts of the dispute, as outlined in the application, submissions and reply to submissions, can be summarised as follows.

On 1 September 2008, Steven Zarafa from Dial A Plumber (“Mr Zarafa”) attended the applicant’s lot to repair a water leak in the bathroom. The applicant states that the plumber ‘patched’ the leak and advised that the pipe work needed to be replaced ‘asap’. The invoice came to a total of $407.00 and in the description states, “Investigate water leaking into unit pressure test hot and cold water to locate leak in shower remove tiles and patch hole (note pipework must be replace asap)”.

The applicant subsequently corresponded with the body corporate via email about the leak and responsibility for the leak. The applicant states that during this time, the body corporate made no attempt to contact the plumber, repair the leak or indicate that they denied responsibility for the leak.

On 27 September 2008, the body corporate requested that the applicant fix the leaks as they were now appearing in the car park below the applicant’s unit. The applicant subsequently had the leak repaired from Dial A Plumber at a cost of $1,303.50. The invoice description in this instance stated, “remove tiles in bathroom area to replace bath/shower combo in wall replace with new and repair wall to original state problem caused by movement of building”.

On 16 October 2008, the applicant forwarded the two invoices to the body corporate for payment. The body corporate subsequently denied responsibility for the leak and did not pay the invoices. The applicant asserts that the body corporate gave no reasons for their decision not to pay the invoices and did not contact the plumber or the insurance company or conduct an inspection of his unit in making their decision. As a result, the applicant claims that the body corporate did not act reasonably in their rejection of the invoices.

The applicant also contends that the source of the leak was a ‘common property cold water pipe’ and pursuant to section 20 of the Act, the utility infrastructure is the responsibility of the body corporate.

In summary, the applicant states that the body corporate should reimburse him the plumbing costs for three main reasons:

1. The silence and inaction of the body corporate led the applicant to believe he had their implicit agreement to undertake the plumbing repairs;
2. The body corporate failed to give the applicant adequate reasons for declining the applicant’s request for reimbursement; and
3. The body corporate failed to consider section 20 of the Act which defines the ownership of utility infrastructure.
   

The application also contained the following documentation:

• An email from the Body Corporate Manager to Mr Zarafa dated 28 January 2009 stating:
  

“Can you please confirm the exact source/origin of the original water leak... we believe it to be the pipe leading up to the shower combination

With regard to the fault, can you (approximately) provide the distance from the combination unit to the faulty pipe

Has the shower combination unit been replaced by yourself at the time of repair

Can you recall what was behind the shower wall in question and:

(ie; was it a bedroom/ kitchen/ toilet/ laundry area)

Was there any damage sustained to other areas caused by the reported water leak.”

In response to this email, Mr Zarafa sent an email to the Body Corporate Manager dated 11 February 2009 stating:

“Yes it was the cold line leading to the shower/bath combo approximately 400mm from the combo however due to condition of the shower/bath combo it was a good idea that it be replaced also. The shower/bath combo backs onto the toilet wall but the main line runs along the outer wall of the building, as for the damage caused by the leak there was no damage that could be seen.”

• A letter from the Body Corporate Manager to the applicant dated 22 March 2009 stating, “...should the combination unit or shower rose be fitted to an internal wall of the unit, then the said repairs to the equipment as stated shall remain the responsibility of the registered lot owner to repair and maintain. Having the ability to inspect the unit directly above yours, we now confirm that the original position of the shower head and combination units are fitted to an internal wall, therefore the legalisation confirms that the repairs to the unit as stated remain the responsibility of the Lot Owner/s.”
  
• A declaration from the plumber, Mr Zarafa, dated 14 April 2009 stating, “The cracked cold water pipe we repaired was a common water pipe which did not just service Unit 1, but also serviced other units in the complex.” This declaration also contained a diagram of the leak, clearly showing the leak to be contained within an internal wall of the lot.
  

The submission from the Body Corporate Manager, Mr Ian Leslie, makes the following comments:

• A physical inspection of the garage/basement area confirmed that the source of the leak was internal to the applicant’s lot, with the likely source suspected as the shower unit / shower floor tray.
• The applicant’s plumber confirmed that the leak was behind the internal wall of the applicant’s lot, behind the shower cubicle.
• The shower unit and associated fitting are situated on an internal wall within the boundaries of the Lot.
  

In reply to the Body Corporate Manager’s submission, the applicant states:

• The silence and inaction of the body corporate led the applicant to believe he had their implicit agreement to undertake the plumbing repairs.
• The body corporate failed to give the applicant adequate reasons for declining the applicant’s request for reimbursement.
• Section 20 of the Act states that ownership (and therefore the responsibility for repairs) of utility infrastructure is the body corporate’s responsibility unless such infrastructure services the applicant’s apartment only. A declaration from the plumber states that the repairs carried out ‘involved a section of the pipes which services other apartments’ as well as the applicant’s apartment. The body corporate has not refuted this.
• There is a ventilation grille/trap door at the bottom of the ‘internal wall’. Inside the trap door is a maze of plumbing pipes.
  

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2]

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 CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about -

(i) the engagement of a person as a body corporate manager or service contractor; or

(ii) the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

DETERMINATION

The main issue for consideration in this matter is whether the body corporate is responsible for the costs of repairing the water leaks, namely $407.00 (Invoice 1573) and $1,303.50 (Invoice 1600). In considering this issue, it is necessary to determine who is responsible for the water leaks.

Applicable Law

Section 159 of the Standard Module, sets out the body corporate’s responsibilities regarding the maintenance of common property. This section is shown below:

159 Duties of body corporate about common property—Act, s 152

(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

Note— For utility infrastructure included in the common property, see section 20 of the Act (Utility infrastructure as common property).

(2) To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must—

(a) maintain in good condition—

(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not common property in a structurally sound condition—

(i) foundation structures;

(ii) roofing structures providing protection;

(iii) essential supporting framework, including load-bearing walls.

(3) Despite anything in subsections (1) and (2)—

(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit; and

(b) the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that the utility infrastructure—

(i) relates only to supplying utility services to the owner’s lot; and

(ii) is 1 of the following types—

• hot-water systems

• washing machines

• clothes dryers

• another device providing a utility service to a lot; and
Examples for paragraph (b)—

1. An air conditioning plant is installed on the common property, but relates only to supplying utility services to a particular lot. The owner of the lot would be responsible for maintaining the air conditioning equipment.
2. A hot-water system is installed on the common property, but supplies water only to a particular lot. The owner of the lot would be responsible for maintaining the hot-water system and the associated pipes and wiring.
   

(c) the owner of the lot is responsible for maintaining the tray of a shower that services the lot, whether or not the tray forms part of the lot.

(4) To avoid any doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) to maintain a part of a lot in good condition or in a structurally sound condition, the body corporate may recover the prescribed costs, as a debt, from a person (whether or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot.

(5) In this section—

prescribed costs means the proportion of the reasonable cost to the body corporate of carrying out the maintenance that can, in the body corporate’s reasonable opinion, be fairly attributed to the person’s actions.

utility infrastructure does not include utility infrastructure that—

(a) is a device for measuring the reticulation or supply of water for a community titles scheme established after 1 January 2008; and

(b) is installed after 1 January 2008, in relation to a compliance request made under the Plumbing and Drainage Act 2002 after 31 December 2007.

Section 20 of the Act, defines the responsibility for utility infrastructure under the Act. This section is set out below:

20 Utility infrastructure as common property

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

(a) utility infrastructure that is—

(i) a device for measuring the reticulation or supply of water for a community titles scheme established after 1 January 2008; and

(ii) installed after 1 January 2008, in relation to a compliance request made under the Plumbing and Drainage Act 2002 after 31 December 2007, on infrastructure supplying water to a lot or land that is common property for the community titles scheme; or

Note—Under the Water Supply (Safety and Reliability) Act 2008, section 35, the devices mentioned in subparagraph (i) are the property of the service provider supplying the water under that Act.

(b) utility infrastructure, other than utility infrastructure mentioned in paragraph (a), that is—

(i) solely related to supplying utility services to a lot; and

(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

(iii) located other than within a boundary structure for the lot.

(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.

Example of utility infrastructure for subsection (2)— 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.

(3) In this section— 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.

Responsibility for Water Leaks

The main issue for consideration in this matter is whether the body corporate is responsible for the costs of repairing the water leaks, namely $407.00 (Invoice 1573) and $1,303.50 (Invoice 1600). In considering this issue, it is necessary to determine who is liable for the leaking pipes.

Section 159 of the Standard Module states that the body corporate must maintain common property in good condition. Section 170 of the Standard Module provides that a lot owner must maintain the lot in good condition. In order to determine responsibility for the water leak, it is necessary to establish whether the water leak occurred in pipes which were common property.

Section 20(1)(b) of the Act states that common property includes all utility infrastructure forming part of scheme land, other than utility infrastructure that is –

• solely related to supplying utility services to a lot; and
• within the boundaries of the lot; and
• located other than within a boundary structure for the lot.
  

“Utility Infrastructure” is defined in the dictionary of the Act to mean “cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services...”. I am satisfied that the pipe in question is utility infrastructure under the Act. Therefore, pursuant to section 20 of the Act, the pipe in question will be common property (and consequently the responsibility of the body corporate) unless all three exceptions are met. That is, the pipe was solely related to supplying utility services to the lot and within the boundaries of the lot and located other than within a boundary structure for the lot.

There appears to be no dispute between the parties in relation to the second and third elements of section 20 of the Act, namely, whether the pipe was located within the boundaries of the lot and whether the pipe was located other than within a boundary structure for the lot. The submission of the Body Corporate Manager states “the leak was found on an internal wall being the shower area...within the boundaries of the Lot”. Further, when discussing the location of the pipe the applicant states, “...the respondents rightly pointed out that this is an internal wall...” Therefore, it appears both parties accept that the pipe is within the boundary of the lot and located other than within a boundary structure for the lot.

The key question for determination in this instance then, is whether the pipe was solely related to supplying utility services to only the applicant’s lot.[5] This is a difficult question of fact. The applicant argues that the pipe was a ‘main pipe’ servicing more than just his lot. In support of his arguments the applicant has included a declaration dated 14 April 2009 from Mr Zarafa, stating, “The cracked cold water pipe we repaired was a common water pipe which did not just service Unit 1, but also serviced other units in the complex.” The applicant also states that the body corporate has not ‘refuted’ the declaration or his claims that the repairs involved a section of the pipe which serviced more than one apartment.

The body corporate, in their submissions, has focused on whether the leak is ‘internal’ to the applicant’s lot. In this regard, the Body Corporate Manager alleges that a physical inspection of the garage/basement area, as well as the report from Mr Zarafa, confirms that the source of the leak was behind the internal wall of the applicant’s lot. Further, in a letter to the applicant dated 22 March 2009 the Body Corporate Manager states, “...should the combination unit or shower rose be fitted to an internal wall of the unit, then the said repairs...shall remain the responsibility of the registered lot owner...we now confirm that the original position of the shower head and combination units are fitted to an internal wall, therefore the legalisation confirms that the repairs to the unit as stated remain the responsibility of the Lot Owner/s.”

While the location of the pipe is a relevant factor to consider under section 20(1)(b) of the Act, it is but one of three factors to consider. In order for the pipe to be the responsibility of the lot owner, all three factors as set out in section 20(1)(b) of the Act must be answered in the positive. In this instance, the body corporate has provided much evidence demonstrating that the leak in the pipe is ‘internal’ to the applicant’s lot (a factor which is not disputed by the applicant) and little evidence as to whether the pipe services more than one lot (the issue for determination). However, both parties have included in their material two emails between the Body Corporate Manager and Mr Zarafa which I have considered in this regard.

The first email dated 28 January 2009 (as set out in full above) is from the Body Corporate Manager to Mr Zarafa seeking confirmation of the exact source/origin of the water leak. In response, Mr Zarafa sent an email to the Body Corporate Manager dated 11 February 2009 stating:

“Yes it was the cold line leading to the shower/bath combo approximately 400mm from the combo...The shower/bath combo backs onto the toilet wall but the main line runs along the outer wall of the building....” (underlining mine).

Upon reading Mr Zarafa’s email dated 11 February 2009 compared with his declaration dated 14 April 2009, I felt there may be some ambiguity as to whether the pipe in question solely supplied utility services to only the applicant’s lot. Consequently, on 7 September 2009, I called Mr Zarafa pursuant to the investigation powers of an adjudicator as set out in section 271 of the Act, and asked him whether the water pipe in question serviced more than one lot. Mr Zarafa stated that the leaking pipe serviced only the applicant’s lot. In order to clarify any ambiguity, I wrote to Mr Zarafa on 8 September 2009, setting out our conversation in detail and seeking written clarification on the issue. A copy of this letter was also sent to the applicant and the body corporate. The relevant sections of my letter are set out below:

“I refer to our telephone conversation yesterday in which I asked you whether the leaking pipe in Mr Fong’s lot serviced more than 1 lot. I note your response that the leaking pipe serviced only Mr Fong’s lot. You explained that the main water line ran up and down the building in the service duct and that the pipe containing the water leak branched off the main pipe and serviced Mr Fong’s bathroom only. Further, you stated that you had to turn the ‘stop tap’ in Mr Fong’s unit (to turn off the water to that unit) before you could complete the work. You explained that this verified the pipe in question serviced only one lot, as if the main water pipe required work the water would have had to be turned off from the main common property point.

In addition, I asked why you had accessed the pipe through the bathroom wall instead of the service duct. You explained that as the pipe was not a ‘main pipe’ serving more than one lot, it was not contained in the service duct and therefore had to be accessed through the bathroom wall.

During the conversation, I drew your attention to a declaration from you dated 14 April 2009 where you stated “the cracked cold water pipe we repaired was a common water pipe which did not just service Unit 1, but also serviced other units in the complex.” I further drew your attention to an email dated 11 February 2009 where you wrote, “it was the cold line leading to the shower/bath combo approximately 400mm from the combo...The shower/bath combo backs onto the toilet wall but the main line runs along the outer wall of the building...”.

For your consideration, I have enclosed the declaration dated 14 April 2009 as well an email from the Body Corporate Manager to yourself dated 28 January 2009 and your response dated 11 February 2009. Please confirm in writing whether the water leak came from a pipe servicing more than one lot or a pipe servicing just Mr Fong’s lot. Please provide reasons for your response. In addition, please provide comment on the abovementioned declaration and email.”

On 12 September 2009, the applicant wrote to this Office in relation to the above letter and made the following comments:

• Mr Zarafa’s responses contradict the oral opinions he gave to the applicant as well as his written declaration;
• Perhaps Mr Zarafa got the applicant’s property confused with another property given the amount of time that has passed from the date of the incident;
• As far as he is aware there are no stop taps to individual apartments because the apartments are not individually water metered;
• The body corporate did not, and could not, refute or rebut any one of the three grounds on which the application is based.
  

On 15 September 2009, pursuant to section 271 of the Act, a member of this Office called the applicant and asked if he would like to provide any evidence (such as a report or statement) from a plumber or other qualified expert to support his assertion that the pipe in question serviced multiple lots. Later that day, the applicant sent an email to our Office stating the following:

• “While I would like to comply with the adjudicator’s request, it would not be practical, or financially sensible, to employ another plumber to check on the work which was done back in September last year. Whoever we employ now would have to access the pipes by removing the shower/bath, the tiles and ‘punch a hole in the wall’ in order to see which pipe was replaced by Mr Zarafa. I envisage that the additional costs would be the equivalent of the monies I am claiming from the body corporate.’
• The body corporate did not “dispute that the pipes serviced other apartments. Therefore this should be accepted as ‘undisputed fact’.”
• “If the body corporate had not disputed any of the ‘events’ or ‘grounds’ outlined in my claim, then I urge the adjudicator to accept them as facts...the Body Corporate’s stated reason for rejecting my claim ie. that the cracked pipe was within my boundary walls, should be the only issue that needs to be weighed up in deciding if I should be recompensed.”
  

On 23 September 2009, our Office called Mr Zarafa and asked if he was writing a response to our letter dated 8 September 2009. Mr Zarafa stated that he had not received the letter. Our Office then sent Mr Zarafa a copy of our letter dated 8 September 2009 via facsimile.

On 8 October 2009, I returned Mr Zarafa’s call. The details of our telephone conversation are set out below:

“Mr Zarafa asked how the matter was progressing. I explained that I had received correspondence from the Applicant in support of his view. In particular, I explained that the Applicant questioned having a stop tap in his unit. Mr Zarafa said that the Applicant definitely had a stop tap in the unit. Mr Zarafa also stated that the pipe in question serviced only his lot. Mr Zarafa said that he was not aware the declaration signed by him on 14 April 2009 contained a statement that the water pipe serviced more than 1 lot. I asked Mr Zarafa if he was ‘certain’ that the pipe in question serviced only the Applicant’s lot given the amount of time which had passed. Mr Zarafa said he could not be ‘certain’ but was quite sure. I asked if Mr Zarafa could respond to my letter dated 8 September 2009 in writing. Mr Zarafa said he was extremely busy but would try respond by mid-next week.”

To date I have not received a written response to my letter from Mr Zarafa.

It is the applicant’s responsibility to prove on the balance of probabilities that the pipe in question serviced more than one lot. In this regard, the applicant is relying on a report dated 14 April 2009 from Mr Zarafa stating that the water pipe serviced multiple lots. However, I consider prior and subsequent information supplied by the applicant’s plumber to be conflicting with this report.

For example, in an email dated 11 February 2009, Mr Zarafa stated that the leak was in the “cold line leading to the shower/bath combo...the shower/bath combo backs onto the toilet wall but the main line runs along the outer wall of the building...” Further, in a telephone conversation dated 7 September 2009, Mr Zarafa stated that, “the pipe containing the water leak branched off the main pipe and serviced Mr Fong’s bathroom only”. While finally, in a telephone conversation dated 8 October 2009, Mr Zarafa stated that “the pipe in question serviced only his [the applicant’s] lot.” In relation to the declaration signed by him on 14 April 2009, Mr Zarafa stated he “was not aware the declaration contained a statement that the water pipe serviced more than 1 lot”.

Without subsequent written evidence from Mr Zarafa clarifying the matter (as requested by our Office on 8 September 2009 and 8 October 2009), I find that the evidence supplied by Mr Zarafa is conflicting. Further, I find that the accuracy of the only professional evidence supplied by the applicant (the statutory declaration dated 14 April 2009) has been called into question. Therefore, due to inconsistencies in the evidence of Mr Zarafa, I am of the opinion that this evidence cannot be relied upon to determine the factual issue of whether the pipe in question serviced only one lot.

In an attempt to clarify the situation, a member of this Office called the applicant on 15 September 2009, and asked if he would like to provide any evidence (such as a report or statement) from a plumber or other qualified expert to support his assertion that the pipe in question serviced multiple lots.[6] Later that day, the applicant sent an email to our Office stating, “while I would like to comply with the adjudicator’s request, it would not be practical, or financially sensible, to employ another plumber to check on the work which was done back in September last year. Whoever we employ now would have to access the pipes by removing the shower/bath, the tiles and ‘punch a hole in the wall’ in order to see which pipe was replaced by Mr Zarafa. I envisage that the additional costs would be the equivalent of the monies I am claiming from the body corporate”. Therefore, after considering the evidence before me, I am of the prima facie view that I do not have sufficient information to conclude whether or not the pipe in question serviced more than one lot.

Additional Arguments Submitted by the Applicant

However, I note that the applicant has submitted a number of additional arguments to support his position that he be reimbursed by the body corporate for the cost of repairing the water leak. In this regard, the applicant submits that the silence and inaction of the body corporate led him to believe he had their implicit agreement to undertake the plumbing repairs, and that the body corporate failed to give adequate reasons for declining his request for reimbursement. As stated above, the sole issue for determination in this matter is the liability for the water leaks pursuant to section 20 of the Act. In accordance with this section, the only issue for determination is whether the pipe in question serviced only one lot. Therefore, while it may have been prudent for the body corporate to better respond to the applicant’s correspondence, engage their own plumber to inspect the water leaks and/or give further reasons for declining the applicant’s request for reimbursement; these are not relevant considerations pursuant to section 20 of the Act.

Further, I note that the applicant has submitted a number of arguments regarding the evidentiary issues. For example, in an email dated 15 September 2009, the applicant stated that the body corporate did not “dispute that the pipes serviced other apartments. Therefore this should be accepted as ‘undisputed fact’.” Further, the applicant stated that, “If the body corporate had not disputed any of the ‘events’ or ‘grounds’ outlined in my claim, then I urge the adjudicator to accept them as facts...the Body Corporate’s stated reason for rejecting my claim ie. that the cracked pipe was within my boundary walls, should be the only issue that needs to be weighed up in deciding if I should be recompensed.” Pursuant to section 269 of the Act, an adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application. When investigating the application the adjudicator must observe natural justice and is not bound by the rules of evidence. Further, as stated by the District Court, an adjudicator is required to investigate an issue as necessary to resolve doubts.[7] Therefore, while I note the applicant’s arguments, an adjudicator is bound to investigate the dispute and cannot simply take something as an ‘undisputed fact’ merely because it has not been considered by the body corporate in their submissions. Moreover, an adjudicator is not limited by the arguments submitted by the parties and can seek additional information and/or submissions as considered reasonably necessary. In this instance, I felt there may be ambiguity as to whether the pipe in question solely supplied utility services to only the applicant’s lot and consequently sought additional information from the applicant’s expert and inturn the applicant. I have considered all of the above evidence in determining this dispute.

CONCLUSION

Section 159 of the Standard Module states that the body corporate must maintain common property in good condition. Section 20 of the Act deems utility infrastructure to be common property only if the utility infrastructure is solely related to supplying utility services to a lot and is within the boundaries of the lot and is located other than within a boundary structure for the lot. It is clear that the pipe in question is located within the boundaries of the lot and is not within a boundary structure for the lot. Therefore, the only issue for determination in this matter is whether the pipe in question serviced only one lot.

It is the applicant’s responsibility to prove on the balance of probabilities that the pipe in question serviced more than one lot. In this regard, the applicant is relying on a report dated 14 April 2009 from the plumber, Mr Zarafa, stating that the water pipe serviced other lots in the complex. After considering the evidence, I am of the opinion that additional information from Mr Zarafa conflicts with this report. Consequently, our Office contacted the applicant and asked if he would like to provide any additional evidence from a plumber or other qualified expert to support his assertion that the pipe in question serviced multiple lots.[8] The applicant subsequently declined our offer.

Due to inconsistencies in the evidence of Mr Zarafa, I am of the opinion that this evidence cannot be relied upon to determine the factual issue of whether the pipe in question serviced only one lot. After considering the evidence before me, I am of the view that I have insufficient evidence to conclude whether or not the pipe in question serviced more than one lot. Therefore, I find that the applicant has failed to prove on the balance of probabilities that the pipe in question serviced more than one lot. On this basis I am dismissing the application.

---

[1] See sections 246 and 244 of the Act respectively.
[2] See sections 227, 228, 276 and Schedule 5 of the Act.
[3] Section 276(2) of the Act.
[4] Section 284(1) of the Act.
[5] Section 20(1)(b)(i) of the Act.

[6] See the investigation powers of an adjudicator under section 271 of the Act.

[7] Klinger & Anor v. Body Corporate for Costa D'Ora Apartments [2007] QDC 300 (14 September 2007).

[8] See the investigation powers of an adjudicator under section 271 of the Act.