Broadwater Shores [2010] QBCCMCmr 31 (22 January 2010)

Last Updated: 19 March 2010

REFERENCE: 0790-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7710
Name of Scheme:	Broadwater Shores
Address of Scheme:	9 Bayview Street RUNAWAY BAY Q 4216

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

Marianne van Weereld, the Owner(s) of lot 2

I hereby order that, within 2 months, the body corporate must ensure that the work listed in items F, G, H, I, and J of the report from Watson Waterproofing dated 15 June 2009 (Watson Report) has been carried out. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0790-2009

“Broadwater Shores” CTS 7710

Application

Broadwater Shores Community Titles Scheme (Broadwater Shores) is a 72 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard 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 Marianne van Weereld, owner of lot 2 (lot 2 owner) seeking orders against the body corporate (body corporate). The applicant complains of water ingress to her lot. A copy of a report from Watson Waterproofing dated 15 June 2009 (the Watson report) is provided. The applicant is seeking an order that the body corporate undertake repair work involving a regrading of her balcony so that the balcony tiles slope outwards rather than back towards her sliding door and window. An order requiring repair work of the external walls is also sought. Orders are also sought to require the body corporate to monitor the situation to ensure water ingress is completely rectified or to take other action as necessary.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the lot 2 owner, were to the effect that:

• Her balcony forms the roof of the common property car park and the body corporate should perform waterproofing work on this balcony as recommended in the Watson report;
• The body corporate should perform waterproofing repairs to the external walls as recommended by the Watson report; and
• Water could also be coming into her unit from the balcony above as seen by damage some metres up the wall.
  

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

• The water ingress to lot 2 was as a result of cyclone force winds and a number of owner experienced water ingress, even through modern cyclone-proof balcony doors;
• The body corporate accepts responsibility for repairs to the external walls being items G to J of the Watson report;
• The body corporate does not accept responsibility for the lot 2 balcony or balcony doors. This is part of lot 2;
• There is no evidence of water coming into the common property car park as a result of a failure of the waterproofing of the lot 2 balcony. What has failed is the seal between the door frame and the surface of the balcony/unit floor. The report does indicate a reverse slope on the balcony but at the time of the storm which caused the damage several units with a positive slope experienced the same problem due to the strong winds.
  

All owners were given an opportunity to provide written submissions. All submissions are available for inspection by interested persons and it is unnecessary to summarise the submissions here.

Investigations following receipt of submissions

The above submissions were received through the legislated processes for inviting written submissions from the body corporate and any persons affected by a community titles scheme dispute (Act, 243). Even where the body corporate makes a submission, it is not unusual for a large proportion of owners to also make their own individual submission. Each person who makes a written submission is effectively joined to the proceedings and given a right of appeal (Act, 289). This overcomes any concern that the particular position advanced in the name of the body corporate only reflects the views of a couple of committee members.

The legislation does not provide for a formal hearing at which the various persons affected by the dispute can further argue their case. In some circumstances it is appropriate for an adjudicator to make a determination based solely on whatever written submissions have been provided.[1] However, an adjudicator will need to undertake appropriate investigations if there is insufficient material for the adjudicator to make an express finding on relevant matters.[2] In this instance, I am satisfied that it is appropriate to rely upon the information contained in the Watson report and it is unnecessary to undertake any further investigations into waterproofing issues.

Issues for determination

The legislation includes provisions to the effect that:

• The body corporate must generally maintain common property in good condition (Standard Module 159(1));
• A lot owner must maintain their own lot in good condition (Standard Module, 170(2));
• Under a building format plan, the boundary between a lot and the common property is generally the centre of the external wall (Land Title Act, 49C);
• Under a building format plan, the body corporate also has maintenance obligations in respect of doors, windows and associated fittings situated in a boundary wall, roofing membranes, and the structural condition of roofing structures and essential supporting framework (Standard Module 159(2));
• The body corporate must administer the common property and body corporate assets reasonably and for the benefit of owners (Act, 152);
• The body corporate must act reasonably in carrying out its functions (Act 94(2), 100(5));
• If an applicant has suffered damage to property because of a contravention of the Act, the adjudicator may order the person who the adjudicator believes on reasonable grounds to be responsible to carry out stated repairs to the damaged property or pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property (Act, 281).
  

The main issues for determination are:

1. What are the waterproofing issues?
2. Do these issues raise maintenance obligations?
3. What work should the body corporate be required to do?

1. Lot 2 waterproofing issues

I am satisfied from submissions that significant amounts of water entered lot 2 during a storm when gale force winds blew water under the balcony door/window of lot 2. Submissions from the chairperson satisfy me that other units also had water ingress from their balconies in the extreme conditions.

I also accept that water is entering lot 2 under less extreme conditions and accept the content of the Watson report that indicates the main problem with water ingress to lot 2 is water running into the unit from the balcony underneath the balcony door/window. This is obviously contributed to by the balcony tiles sloping back towards the balcony door/window rather than towards the exterior of the building.

I also accept a submission from the lot 2 owner to the effect that a bubbling of the newly painted walls indicates moisture coming into lot 2 from other sources. Based on the Watson report I am satisfied that there is a reasonable possibility of water coming through the exterior walls of lot 2 from a crack in the render behind the stormwater pipe, thorough cable holes, and through weep holes.[3]

I note that there is no evidence that can reasonably satisfy me that water is coming into lot 2 as a result of a failure of waterproofing of the unit or balcony above, as a failure of the waterproofing membrane on the balcony of lot 2 itself, or as a failure of the internal wall flashings. The failure of the Watson report to identify any waterproofing issues in this regard would tend to an inference that there are no reasonable waterproofing concerns in this respect. Although, it should be noted that the Watson report specifically states that it was not possible to carry out an inspection of the internal wall flashings or the internal wall of the kitchen area. This was presumably because it was not possible to visually inspect these areas without causing damage to the unit or building.

2. Maintenance obligations

What are the body corporate’s obligations?

The lot 2 owner appears to be seeking orders require the body corporate to investigate and prevent all possible water ingress to her unit rather than simply address known concerns as identified in the Watson report.

In New South Wales it has been determined that the obligation of an owners corporation under the Strata Scheme Management Act 1996 (NSW) to maintain common property is a strict liability that has been contravened as soon as some part of the common property is no longer operating effectively or has fallen into disrepair.[4] However, this obligation to maintain does not impose a standard of care requiring the body corporate to inspect the premises for the purpose of discovering unknown and unsuspected defects.[5]

In Queensland, the Act provides that the body corporate must "administer, manage and control the common property ... reasonably and for the benefit of lot owners" and the body corporate must act "reasonably" in carrying out its functions (Act 152(1), 94(2), 100(5)). In this context, it appears that the obligation in section 159 of the Standard Module that the body corporate "maintain common property in good condition" should not be interpreted as imposing a strict liability that is contravened as soon as something stops operating properly. Rather, it appears that a body corporate, acting reasonably, should have a system in place for monitoring the maintenance and state of repair of the common property.[6] The body corporate would only be in breach of its duty to maintain if it fails to remedy deterioration or defects within a reasonable time of when it became aware of the problem or should reasonably have become aware of the problem.[7] Also, the body corporate would not be in breach of its duty if there is no deterioration or defect but water ingress occurs only as a result of an extreme weather event.

No further investigations required at this time

The Watson report has identified a number of existing defects in relation to the lot and the common property. The duty to maintain, whether of the owner or the body corporate, includes a duty to take preventative measures and to remedy defects in the original construction.[8]

This duty to maintain also requires that the body corporate should undertake reasonable monitoring and investigation of the state of repair of the common property.[9]

However, at the present time it is reasonable for the body corporate to rely upon the Watson report and I do not consider that the body corporate has any legal duty to perform any other investigations pending some evaluation of what further water ingress occurs after the recommendations in the Watson report have been carried out.

Known defects that require maintenance

The main problem identified by the Watson report is water flowing into the lounge from the balcony area. It seems more likely than not that any other water coming into lot 2 is coming through the exterior walls of lot 2 from a crack in the render behind the stormwater pipe, thorough cable holes, and through weep holes. These are known defects that would be expected to be addressed within two to three months. I am therefore satisfied that there has therefore been a failure to comply with the obligation to maintain the lot and common property in good condition.

However, there is no evidence at this time that raises a reasonable apprehension of water coming into lot 2 as a result of a failure of waterproofing of the unit or balcony above, as a failure of the waterproofing membrane on the balcony of lot 2 itself, or as a failure of the internal wall flashings. I also accept submissions from the chairperson to the effect that there is no evidence of capillary water action through the lot 2 slab to the common property car park below.

3. What work should the body corporate be required to do?

The submissions and copy of the plan provided satisfy me that the balcony of lot 2 forms part of the lot with the balcony door/window being wholly within the boundaries of the lot. The defect with the waterproofing around this balcony door/window is wholly within the boundaries of lot 2. The proposed work to rectify this defect is also within the boundaries of lot 2, being the installation of a new infill, sealing of window joints and edges, and possible retiling of balcony. This maintenance is the responsibility of the lot 2 owner. I note that the waterproofing membrane on the balcony of lot 2 will remain the maintenance responsibility of the body corporate (Standard Module, 159((2)(a)(iii)). However, the lot 2 owner should be aware that if the work she has done on the balcony damages this waterproofing membrane then the body corporate can recover the reasonable costs from her (Standard Module, 159(4)).

Other defects identified by the Watson report relate primarily to the exterior of the walls of lot 2 and the proposed work to rectify these defects requires work on the exterior of the walls. It appears that the general rule under a building format plan is applicable to the extent that the boundary between a lot and the common property is the centre of the external wall (Land Title Act, 49C). I am satisfied that the body corporate has a responsibility to address the concerns raised in the Watson report regarding the cracked render, cable holes, and weep holes.[10]

I am not satisfied that the body corporate has any legal obligation at this present time to perform any other work in relation to the waterproofing of lot 2 or to carry out any further inspections in relation to that issue. However, the body corporate is likely to be required to carry out reasonable investigations if there is unexplained evidence of water ingress to lot 2 even after the defects identified by the Watson report have been rectified.

Order

For these reasons, I make the order above.

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[1] Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336, Jerrard JA, Keane JA, Cullinane J, 9 September 2005, per Keane JA at paragraph 31.
[2] Johnston v The Body Corporate for Waterside Runaway Bay CTS 34678 [2009] CCT KA008-08, KD Dorney QC, 6 February 2009 at paragraph 25.
[3] Refer to items F-J of the Watson report.
[4] Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157, paragraphs 3-5.
[5] Ridis v Strata Plan 10308 [2005] NSWCA 246, paragraphs 133, 175, 186.
[6] Ridis v Strata Plan 10308 [2005] NSWCA 246, paragraph 5.
[7] Klinger & Anor v Body Corporate for Costa D’Ora Apartments [2007] QDC 300, paragraph 67.
[8] Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157, paragraph 4.
[9] Ridis v Strata Plan 10308 [2005] NSWCA 246, paragraph 5.
[10] Items F, G H, I and J of the Watson report.