Laguna [2010] QBCCMCmr 1 (4 January 2010)

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

1. I hereby order that the Body Corporate for Laguna is to pay the sum of $2,334.66 for roofing repairs to the common property roof to Scott and Helen Headland within 21 days of the date of this order.

2. I further order that Scott and Helen Headland are to use the amount of $2,334.66, received from the Body Corporate for Laguna, to pay in full the Headland Shopfitting Pty Ltd invoice dated 16 July 2008 within 28 days of the date of this order.

3. I further order that within four months of the date of this order:

The Body Corporate for Laguna is to obtain at least two current quotations for the scope of the internal water damage work to Lot 4A as outlined in the Mighty Building & Maintanence quotation dated 4 July 2008 and the Shane Martin quotation dated 24 April 2008; and
The Body Corporate for Laguna is to carry out the repairs to Lot 4A in accordance with a quotation obtained per clause 3A of this order.

The Laguna community titles scheme 13564 (“Laguna”) consists of 6 lots and common property. The community management statement (“CMS”) for Laguna indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (“Standard Module”) applies to the scheme.

Pursuant to the Body Corporate and Community Management Act 1997 (“Act”), this application was made by Mr Scott and Mrs Helen Headland, owners of Lot 4A (“applicants”) on 7 January 2009. The applicants sought orders against the Body Corporate for Laguna (“respondent”) in the following terms:

We are seeking reimbursement for costs incurred to repair the roof at 4/61 Hedges Avenue, Mermaid Beach. I am also seeking authorisation and furthermore payment for repair to the water damaged ceiling and cabinets which was caused by the roof leak (quotes have been provided to the Body Corporate Manager and are attached in Annexure C).

In October 2008 the parties participated in a conciliation conference 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 all lot owners and the body corporate committee (“committee”), with an invitation to all lot owners and the committee to respond to the matters raised by the application. A submission was made from the owner of lot 2A who is also the chairperson of the committee, as well as the owner of lot 1A. The applicants inspected the submissions received and made a written reply.[1]

A dispute resolution recommendation was made referring the dispute to departmental adjudication. I then investigated the dispute, pursuant to section 271 of the Act, which included reviewing the application and submissions and seeking further information from the parties as detailed below.

The application relates to the responsibility for roof repairs and internal water damage to the applicants’ lot. The facts of the dispute, as outlined in the application, submissions and reply to submissions, can be summarised as follows.

The applicants state they were advised by their property manager, Leah Kaslar, on 12 June 2008 that their tenants had been getting electric shocks from power points due to water leaking through the roof. The applicants claim that Ms Kaslar had been trying to get the roof fixed for some time with no result from the body corporate.

The applicants claim they notified the Body Corporate Manager, Grant Kerrison from Australian Unit Administration Pty Ltd (“AUA”) about the roofing issues on 12 June 2008. The applicants allege that Mr Kerrison advised them to send a tradesperson to the unit to fix the roof and to forward the invoice to him for payment. The applicants claim Mr Kerrison stated “he will make sure it gets paid as this situation was a special circumstance...and there was a safety issue”.

On 13 June 2008, Headland Shopfitting Pty Ltd (“Headland Shopfitting”) commenced fixing the applicants’ roof. The cost of the roof repairs was $2,334.66. The applicants subsequently forwarded this invoice to the body corporate for payment and to date it has not been paid. On 18 June 2008, the applicants arranged for Coastline Electrical Service Pty Ltd (“Coastline Electrical Service”) to fix the electrical problems. This invoice states, “called to job after rain water leaked through roof. Power points sparking and safety switch on switchboard tripped. Replace water damaged power point, light fitting and exhaust fan heater in bathroom”. The invoice came to an amount of $397 and was paid by the body corporate. The applicants claim that the electrical work was urgent and could not be repaired until the roof was fixed (as leaking water from the roof would continue to cause electrical problems). The applicants want the body corporate to pay the Headland Shopfitting invoice.

The applicants also allege that damage occurred to the inside of their lot from the leaking roof. The applicants have included in their application a quotation from Mighty Building & Maintanence (“MBM”) dated 4 July 2008 for $1,721.50. This quotation includes, “the removal and dumping of existing water damaged cabinets, manufacturing, supply and installation of new overhead cabinets, dishwasher cabinet/top and extra’s”. Further, the applicants have included in their application a quotation from Shane Martin dated 24 April 2008 for $245.00. This quotation is for the scraping back and repainting of the water damaged wall and ceiling around the vent.

A submission was made from the owner of lot 2A, Mr John Fihelly (chairperson of the committee) on behalf of the body corporate, opposing the application. The chairperson claims the applicants were aware that the body corporate was intending to vote on the roof maintenance at an upcoming extraordinary general meeting (“EGM”) on 16 July 2008. He states that the committee offered to put a tarpaulin on the applicants’ roof pending the proposed maintenance work. Further, the chairperson claims that the roof repairs undertaken by the applicants were not necessary and that the applicants were advised by a senior shopfitter that ‘the roof cappings simply needed to be regrouted’.

In regards to the internal water damage, the chairperson states that the water damage to the applicants’ kitchen is unrelated to the water leak in the applicants’ roof. The chairperson states that the internal water damage to the applicants’ lot was not caused from a leaking roof but by a leaking shower. As evidence of this, the chairperson states that the body corporate performed a full roof restoration in August 2008 and the tenants were still reporting water seeping into the kitchen cupboards when they used the main bathroom shower in September 2008. The chairperson also refers to notes from Ms Kaslar dated 27 March 2008, stating “the tenant... phoned to report that the shower is leaking into the top kitchen cupboard...when they use the shower”.

A submission was also made by the owner of lot 1A opposing the application. This lot owner states that the emergency repairs undertaken to the applicants’ roof should have been of a temporary nature and that any additional work should have been discussed and approved by the committee before being completed.

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:

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

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

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]

On 28 August 2009, I requested that the applicants provide more information regarding the following issues:[5]

1. The quotes included in the application are dated 4 July 2008 and 24 April 2008. Please provide current quotes for the internal water damage to the lot.

2. Please provide any evidence, including any reports from suitably qualified persons, to support your arguments in respect of the following:

2. In response to question 2, Scott Headland (one of the applicants) stated, “I feel I’m suitably qualified to answer the following questions as I am a qualified Carpenter and Joiner (for 29 years) and have been a licensed builder in Qld for 18 years...” With respect to parts A to D, the applicant stated:

On 25 August 2009, I requested that the body corporate provide more information regarding the following issues:[6]

1. Please provide any evidence which substantiates the assertion that the applicants knew about the body corporate’s proposed roof repairs before 12 June 2008.

2. Please provide any evidence which substantiates the assertions that the applicants could have used a tarpaulin to fix the roof problems pending the full roof restoration or that the applicants were offered a tarpaulin from the body corporate.

3. Please provide any evidence which substantiates the assertion that the roof repairs undertaken by the applicants were not necessary.

4. Please provide clarification as to whether the body corporate has made any attempt to lodge an insurance claim regarding any internal water damage to the applicants’ lot. If not, why not?

The body corporate’s response was provided by Mr Fihelly (chairperson) and stated the following:

1. In support of the assertion that the applicants knew about the proposed roof repairs before 12 June 2008, Mr Fihelly referred to the following notes from the applicants’ agent, Ms Kaslar:

2. In support of the assertions that the applicants could have used a tarpaulin to fix the roof problems or that the applicants were offered a tarpaulin, Mr Fihelly states:

Further, Mr Fihelly provided a letter dated 4 September 2009 from Mrs Denovan (owner of unit 1) stating “Mr Fihelly mentioned to me that he had spoken to Mr Grant Kerrison...who informed him that it was suggested to Mr. Headland that tarps could be made available to temporally protect his unit”.

3. In support of the assertion that the roof repairs undertaken by the applicants were not necessary, Mr Fihelly included a letter from Mr Stuart Smith dated 2 September 2009 stating, “yes I do think that the work was unnecessary because we had to remove that grouting and tiles to install sarking. We then refixed batons and tiles, finally rebed all those ridge cappings using flexi point. This, in effect, was removing and redoing the previous work mentioned.”

4. In response to whether the body corporate had made any attempt to lodge an insurance claim regarding any internal water damage to the applicants’ lot, Mr Fihelly stated that the committee had not lodged an insurance claim because the applicants had already lodged a claim. However, only one quotation (instead of two) was submitted to the insurance company and the claim was not processed. Mr Fihelly believes the body corporate is reopening the matter.

In my letters dated 25 August 2009 and 28 August 2009, I requested that each party provide a copy of their comments to the other party. In response to the material provided by the applicants, Mr Fihelly made the following response:

Section 159 of the Standard Module sets out the body corporate’s obligations regarding the maintenance of common property. The section provides as follows:

(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—

(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—

(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—

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

(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.

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.

(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 281 of the Act sets out the requirements for an order to repair damage or reimburse an amount paid for the repair of damage. The section provides as follows:

281 Order to repair damage or reimburse amount paid for carrying out repairs

(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.

Example - 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.

(a) for an order under subsection (1)(a)—the cost of carrying out the repairs is more than $75000; or

(b) for an order made under subsection (1)(b)—the amount fixed by the adjudicator would be more than $10000.

The main issues for consideration in this matter are whether the body corporate is responsible for the cost of the applicants’ roof repairs, and further, whether the body corporate is responsible for any internal water damage to the applicants’ lot.

Section 159(1) of the Standard Module provides that the body corporate must maintain common property in good condition. Further, section 159(2) of the Standard Module states that where lots are created under a building format plan of subdivision the body corporate must maintain roofing membranes in a good condition and roofing structures providing protection in a structurally sound condition.

Common property is defined in the footnote of section 10(b) of the Act as, ‘...freehold land forming part of the scheme land, but not forming part of a lot included in the scheme’. This scheme has been created under a building format plan (previously known as a building unit plan) of subdivision. Section 48C of the Land Title Act 1994 (“the LTA”), states that a ‘building format plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings’. Further, section 49C(4) of the LTA states that the boundary of a lot in a building format plan of subdivision is ‘...the centre of the floor, wall or ceiling’ separating the lot from another lot or common property. I am satisfied that the roof of the building is common property and that the body corporate has a prima facie obligation to maintain the roof of lot 4A in good condition. This obligation includes completing any work necessary to ensure that the roof is maintained in good condition.

Despite the above maintenance responsibilities, the body corporate have argued that they are not responsible for the roof repairs conducted by the applicants as such repairs were not validly authorised by the body corporate.

Sections 151 and 152 of the Standard Module set out the spending requirements for the body corporate. Section 151 of the Standard Module provides that the committee may only give effect to a proposal involving spending above the relevant limit for committee spending if –

“(a) the spending is specifically authorised by ordinary resolution of the body corporate; or

(b) the owners of all lots included in the scheme have given written consent; or

(c) an adjudicator is satisfied that the spending is required to meet an emergency...; or

(d) the spending is necessary to comply with...a statutory order...order of an adjudicator...or...the judgement or order of a court”.

The “relevant spending limit for committee spending” is defined as the amount last set as the relevant limit by an ordinary resolution of the body corporate, or if there is no amount set, an amount worked out by multiplying $200 by the number of lots included in the scheme.[7] I wrote to the body corporate on 25 August 2009 seeking clarification of the committee spending limit for this scheme.[8] On 8 August 2009 the body corporate confirmed that the committee spending limit was $200 x 6 lots, namely $1,200. Accordingly, any amount above $1,200 must be approved via section 151 of the Standard Module, that is, by the written consent of all owners, an ordinary resolution of the body corporate or an order of an adjudicator for emergency expenditure.

The applicants state they were given authority from the body corporate manager, Mr Kerrison, to undertake the roof repairs at the body corporate’s expense. The amount of the expenditure in this instance was $2,334.66 and thus above the relevant limit of $1,200 for committee spending. Therefore, regardless of whether the applicants ‘obtained permission’ to undertake the roof repairs, as the expenditure was above the committee spending limit, authority could only have been obtained by one of the methods set out in section 151 of the Standard Module. I understand that this matter was not considered by the body corporate at a general meeting, nor was the written consent of all lot owners obtained or an application lodged with the Commissioner’s Office for emergency expenditure. Therefore, while I am satisfied that the applicants acted in good faith in reliance on the information provided by Mr Kerrison, I find that the applicants undertook the roof repairs without authority from the body corporate. Further, given the requirements for expenditure in section 151 of the Standard Module, I question whether Mr Kerrison, as the body corporate manager, was able to authorise any expenditure on behalf of the body corporate.

However, the fact that the spending was not formally approved by the body corporate does not prima facie alleviate the body corporate of its maintenance responsibilities under section 159 of the Standard Module. A similar view was held by an adjudicator in the dispute of Costa D’Ora Apartments.[9] In that matter, the issue for determination was whether the body corporate was responsible for the cost of balcony maintenance under section 109 of the Standard Module (now section 159 of the Standard Module) when the maintenance was undertaken by a lot owner without authority from the body corporate. There the adjudicator stated “the applicants have acted inappropriately and incorrectly by proceeding with work without formal Body Corporate approval. Notwithstanding this, I am of the view that it would not be just and equitable for the Body Corporate to avoid any financial outlay for work which would normally be its responsibility because the applicants failed to follow appropriate process...”

On appeal to the District Court, this view was further supported by DCJ Searle where he stated “the statutory duty imposed on the Body Corporate...is one which obliges it to remedy any defect as soon as any of the building parts covered by the duty fall into disrepair or were not operating properly. Failure to do so, once aware, gave rise to a breach of its duty...in my view the Appellants cannot be criticised or penalised for going ahead and rectifying that which the Body Corporate was duty bound to do but had failed to do.”[10]

Therefore, the fact that the applicants failed to have the roof repairs validly authorised, does not prima facie alleviate the body corporate from its maintenance responsibilities. Rather, it is necessary to determine whether the work was reasonably necessary in the circumstances.

In determining whether the applicants’ roof repairs were ‘reasonably necessary’ in the circumstances, I have considered the objective basis for each of the parties’ arguments regarding this issue.

Firstly, the body corporate argues that the roof repairs undertaken by the applicants were not reasonably necessary as the applicants had sufficient knowledge by the date of the incident (12 June 2008) that the body corporate would be considering a motion regarding a ‘whole of roof restoration’ in approximately one months time. In support of their assertions, the body corporate refers to notes from the applicants’ agent, Ms Kaslar, which state:

The applicants however, state that their roof repairs were reasonably necessary, as they had insufficient knowledge of the body corporate’s proposed roof restoration by 12 June 2008. Although, the above entries demonstrate that the applicants’ (through their agent) were aware that the body corporate was investigating a roof restoration, I am not satisfied from the evidence provided that the applicants had sufficient information by the date of the incident (12 June 2008) to know that the body corporate would be considering a motion regarding the roof repairs in approximately one months time.

Further, the body corporate argues that the applicants’ roof repairs were not reasonably necessary as the applicants could have placed a tarpaulin on their roof pending the body corporate’s full roof restoration. In this regard, Mr Fihelly claims that he spoke to Mr Kerrison at the time of the event and was told by Mr Kerrison that he advised the applicants to place a tarpaulin over their roof. The applicants’ however, deny all allegations that they were offered a tarpaulin from Mr Kerrison at the time of the event. Neither the applicants nor Mr Fihelly have provided me with evidence to substantiate their assertions in this regard. However, I note that the assertions from Mr Fihelly involve details of conversations which he was not privy to. Rather, Mr Fihelly is relying on verbal information provided to him by Mr Kerrison regarding the relevant conversations. The assertions by the applicants on the other hand, whilst also unsubstantiated, arise from firsthand knowledge of the conversations. Based on the evidence before me, I find the claims of the applicants more reliable than that of Mr Fihelly, as the applicants had firsthand knowledge of the conversation. Therefore, I find it more likely than not that the applicants were not offered a tarpaulin from the body corporate.

Another argument submitted by the body corporate is that the applicants’ roof repairs were not reasonably necessary, as Stuart Smith (the worker engaged by the body corporate to complete the full roof restoration) had to ‘remove’ or ‘redo’ all of the applicants’ roof repairs. In support of their assertions, the body corporate has submitted a letter from Mr Stuart Smith dated 2 September 2009 stating, “yes I do think that the work was unnecessary because we had to remove that grouting and tiles to install sarking...this, in effect, was removing and redoing the previous work mentioned. From the evidence provided, I am satisfied that some (if not all) of the work performed by the applicants was removed or re-done as part of the body corporate’s whole of roof restoration project. However, this in and of itself does not show that the applicant’s roof repairs were not reasonably necessary in the circumstances.

In addition, the body corporate refers to the dates of the Headland Shopfitting invoice (16 July 2008) and the Coastline Electrical Service invoice (18 June 2008) and argues that the applicants’ roof repairs were not reasonably necessary as the repairs were not required to be undertaken before the electrical work could be completed. While I note that the date of the Headland Shopfitting invoice is later than the date of the Coastline Electrical Service, the description in the Headland Shopfitting invoice states that the roof repair work commenced on 13 June 2008 (the day after the incident on 12 June 2008). Therefore, despite the fact that the Headland Shopfitting invoice was issued after the Coastline Electrical Service invoice, I am satisfied that the applicants’ roof repairs were commenced both swiftly and prior to the electrical repairs being undertaken.

Finally, the body corporate argues that the roof repairs undertaken by the applicants were not reasonably necessary as the applicants’ electrical issues were caused by corroded electrical wires behind the power points, not water damage. However, the body corporate has provided no evidence to support their assertions in this regard. The applicants’ on the other hand, state that the roof repairs were necessary as their tenants were receiving electric shocks from the power points due to the leaking roof; therefore the roof was required to be fixed urgently before the electrical work could be repaired. In support of their assertions, the applicants have submitted an invoice from Coastline Electrical Service which states, “called to job after rain water leaked through roof. Power points sparking and safety switch on switchboard tripped... ” (underlining mine).

Based on the evidence provided, I am satisfied that water leaked through the roof, and consequently, that the roof was not in a state of repair as required under section 159 of the Standard Module. This conclusion is further supported by the fact that the body corporate were obtaining quotes to repair the roof around the date of the incident. In addition, as the Coastline Electrical Service invoice states that water leaked through the roof and damage to the power boards occurred, I am satisfied that it is more likely than not that water leaking from the roof caused the electrical issues in the applicants' unit and that steps to rectify the roofing issues needed to be taken as soon as possible.

Therefore, based on the evidence before me, I am satisfied that the common property roof was not in a state of repair as required under section 159 of the Standard Module as water from the roof was leaking into the applicants’ unit. Further, I am satisfied that it is more likely than not that water leaking from the roof was causing the electrical issues in the applicants' unit. Therefore, I am of the opinion that steps to rectify the roofing issues needed to be undertaken as soon as possible. Accordingly, despite the fact that some (if not all) of the work performed by the applicants was removed or re-done as part of the body corporate’s whole of roof restoration project, I find that the roof repairs undertaken by the applicants were reasonably necessary at the time. On this basis, I am ordering that the body corporate is to pay the sum of $2,334.66 for roof repairs to the applicants within 21 days of the date of this order. Further, as the Headland Shopfitting invoice is yet to be paid, I am ordering that the applicants are to use the amount of $2,334.66, received by the body corporate, to pay in full the Headland Shopfitting invoice dated 16 July 2008 within 28 days of the date of this order.

INTERNAL WATER DAMAGE TO LOT 4A

As stated above, pursuant to section 159 of the Standard Module the body corporate has a prima facie obligation maintain the roof of lot 4A in good condition, which includes completing any work necessary to ensure that the roof is maintained to the requisite standard. In accordance with section 281 of the Act, an adjudicator has specific powers to order a person responsible for a contravention to carry out stated repairs to damaged property to an amount of up to $75,000 or reimburse a person for repairs up to an amount of $10,000.

It is not disputed by the parties that the roof of lot 4A required maintenance. Nor is it disputed that the roof has been repaired. I am satisfied from the circumstances that there was a contravention of the Act to the extent that the common property roof was not in a condition to provide adequate protection to the applicants’ lot. The question for determination is whether the applicants have suffered damage to their property as a result of this contravention.

The applicants initially included in their application two quotations, one from MBM dated 4 July 2008 for $1,721.50 and another from Shane Martin dated 24 April 2008 for $245.00. The quotation from MBM included, “the removal and dumping of existing water damaged cabinets, manufacturing, supply and installation of new overhead cabinets, dishwasher cabinet/top and extra’s” and the quotation from Shane Martin was for the scraping back and repainting of the water damaged wall and ceiling around the vent. The body corporate has not disputed the scope of works as set out in the 2008 quotations. On this basis, I am satisfied that the work is an accurate description of the internal water damage to the applicants’ lot.

On 28 August 2009, I wrote to the applicants and requested that they obtain current quotations for the internal water damage to their lot.[11] On 23 September 2009, the applicants provided our Office with the following quotations:

The body corporate questions the scope of work contained in the 2009 quotations and states that the quotations now include additional work. While, it does appear that the above quotations contain work in addition to that initially stated in the application, I have been provided with no evidence to suggest that these quotations are not an accurate description of the internal water damage to the applicants’ lot. Therefore, the next question for determination is whether the above internal water damage was caused by the body corporate’s contravention of the Act (namely a failure to maintain the common property roof in good condition).

Was the internal water damage caused from a leak in the common property roof?

The body corporate states that the internal damage to the applicants’ lot was not caused from a leaking roof but from the applicants’ leaking shower. In support of their assertion, the body corporate states that the applicants’ tenants claimed water was seeping into the kitchen cupboards in September 2008 after the full roof repairs in August 2008. However, no written correspondence has been presented to me in support of this claim.

Further, the body corporate refers to notes from Ms Kaslar dated 27 March 2008, stating “the tenant... phoned to report that the shower is leaking into the top kitchen cupboard, onto the bench and onto the floor when they use the shower”. However, the notes from Ms Kaslar to which the body corporate refer go onto state in an entry dated 1 April 2008 that an inspection of the property found ‘a water leak from the roof in the kitchen causing paint to peel on the ceiling and dampness around exhaust fan’ and subsequently that ‘Mr Fihelly called and said the Body Corporate Maintenance man has visited, it might be flashing or a roof tile or two cracked’. Therefore, although

the diary note dated 27 March 2008 makes reference to water leaking into the kitchen from the shower; subsequent diary entries contradict this claim. Further, I note that the body corporate have provided me with no reports or other evidence to verify that any water damage came from any source other than the common property roof, including the applicants’ bathroom. Therefore, I find the body corporate’s claims that water was leaking into the applicants’ lot from their shower to be unsubstantiated.

On the other hand, the applicants state that the water damage was caused from a leak in the common property roof. In support of their arguments, the applicants have supplied an invoice from Coastline Electrical Service dated 18 June 2008 which states, “...called to job after rain water leaked through roof...”. Further, I refer to the above diary entry by Ms Kalsar dated 1 April 2008 which states that an inspection of the property found ‘a water leak from the roof in the kitchen causing paint to peel on the ceiling and dampness around exhaust fan’ and that ‘Mr Fihelly called and said the Body Corporate Maintenance man has visited, it might be flashing or a roof tile or two cracked’. These notes and invoices seem to support the applicants’ assertions that there was a water leak in the roof, and that this water leak caused damage to lot 4A as initially described in the application per the quotations from MBM dated 4 July 2008 and Shane Martin dated 24 April 2008. Therefore, based on the evidence before me, I am satisfied that it is more likely than not that water damage was caused to the applicants’ lot (as described in the quotations from MBM and Shane Martin dated 4 July 2008 and 24 April 2008 respectively) from a water leak in the roof.

However, I refer to the quotations from Tom Laws and RPM dated 10 September 2009 and 13 September 2009 and note that these quotations contain additional work beyond that contained in the initial quotations. For example, I note that the recent quotations include repair to the lounge, kitchen, bedroom 1, bedroom 2 and bathroom as well as painting whereas the original quotations included painting on the wall and ceiling around the vent and the replacement of damaged kitchen cabinets. As this work was not included in the original quotations or the outcome sought which states “I am seeking....payment for repair to the water damage ceiling and cabinets...(quotes have been provided...)”, I am lead to assume that this damage has arisen post the lodgement of this application. In this case, the applicants must also establish causation between a contravention of the Act (in this case the leaking roof) and the internal water damage. I have been provided with no evidence to justify causation between the water leaks in the roof and the additional water damage listed in the 2009 quotations. Further, I am of the opinion that the applicants’ evidence that they repaired the relevant sections of the roof in June 2008 (through Headland Shopfitting) coupled with the body corporate’s evidence that they completed a full roof restoration in August 2008, renders it unlikely that any subsequent water damage to the applicants’ lot was caused by water leaks from the roof. Therefore, I find that the applicants have failed to prove causation between any subsequent internal water damage to their lot and a contravention of the Act. Accordingly, I find that the body corporate is not responsible for any internal water damage to the applicants’ lot beyond that set out in the MBM quotation dated 4 July 2008 and the Shane Martin dated 24 April 2008.

However, I note that the quotations from MBM dated 4 July 2008 and Shane Martin dated 24 April 2008 are now out of date and subsequent quotations will have to be obtained before any rectification work can be performed. On this basis, I am ordering that within four months of the date of this order:

However, any quotations obtained in this regard, are only required to contain work which is of a compatible standard and design to that contained in the applicants’ unit at the time of the water damage, namely June 2008. The body corporate is not responsible for any upgrades or improvements to the applicants’ lot.[12] Further, the applicants should assist the body corporate to carry out this order by making their lot available to the body corporate and other appropriate tradespeople for the purpose of obtaining quotations and performing the work in accordance with this order.[13]

I am satisfied that the work performed by the applicants to fix the roof pending the repair of the electrical issues was reasonably necessary in the circumstances. On this basis, I am ordering that the body corporate is to pay the sum of $2,334.66 for roofing repairs to the common property roof to the applicants’ within 21 days of the date of this order. Further, as the Headland Shopfitting invoice is yet to be paid, I am ordering that the applicants are to use the amount of $2,334.66 received by the body corporate, to pay in full the Headland Shopfitting invoice dated 16 July 2008 within 28 days of the date of this order.

Further, I am satisfied that the applicants have suffered damage to their property because of the failure of the body corporate to maintain the common property roof. I find that the body corporate is responsible for the damage to the applicants’ property as contained in the MBM quotation dated 4 July 2008 and the Shane Martin quotation dated 24 April 2008. On this basis, I am ordering that within four months of the date of this order:

[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] See the investigation powers of an adjudicator under section 271 of the Act.
[6] See the investigation powers of an adjudicator under section 271 of the Act.
[7] See the definitions as set out in the dictionary of the Standard Module.
[8] See the investigation powers of an adjudicator under section 271 of the Act.
[9] ID Rosemann in Costa D'Ora Apartments [2006] QBCCMCmr 621 (27 November 2006).
[10] Klinger & Anor v Body Corporate for Costa D’Ora Apartments [2007] QDC 300 at paragraph 67 and 68.
[11] See the investigation powers of an adjudicator pursuant to section 271 of the Act.
[12] Beaumont [2009] QBCCMCmr 240 (29 June 2009).
[13] See section 163 of the Act regarding the power of the body corporate or an authorised person to enter a lot.

Number of Scheme:	13564
Name of Scheme:	Laguna
Address of Scheme:	61 Hedges Avenue MERMAID BEACH QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Laguna [2010] QBCCMCmr 1 (4 January 2010)