Admiralty Towers [2011] QBCCMCmr 13 (18 January 2011)

Number of Scheme:	16440
Name of Scheme:	Admiralty Towers
Address of Scheme:	35 Howard Street BRISBANE QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Wendy Christie, the owner of Lot 65

I hereby order that the body corporate for Admiralty Towers community titles scheme 16440 must, within one month of the date of this order, pay the amount of $3,556.30 to Wendy Christie, the owner of Lot 65.

I further order that in all other respects the application for an order by Wendy Christie is dismissed.

The application
This application made by Wendy Christie, the owner of Lot 65 (applicant), seeks outcomes that the body corporate reimburses her for the payment of $3,556.30 made to Damien Lacey Plumbing Maintenance Pty Ltd (Lacey) and for the fees paid to make a conciliation application and this application.

On 1 October 2010, the commissioner invited submissions from all lot owners (excluding the applicant) and the committee regarding the application under section 243 of the Body Corporate and Community Management Act 1997 (Act). Submissions were made by one lot owner and the committee. The applicant made a written reply to submissions. On 16 December 2010, the commissioner made a dispute resolution recommendation under section 248 of the Act referring the application to departmental adjudication.

Adjudication
An adjudicator may make an order that is just and equitable in the circumstances 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). An order may require a person to act in a way stated in the order (s 276(2), Act).

It is uncontested that Lacey carried out work to repair a leaking water pipe. The applicant provided a copy of the invoice from Lacey dated 26 October 2009 for work carried out at Lot 65 from 29 April 2008 to 3 May 2008 at a cost of $3,556.30. It is apparent from the material that the applicant has paid Lacey and that the body corporate believes it is not responsible for the work.

The applicant provided a copy of a letter dated 8 September 2009 to her from Carol Coles (body corporate secretary) stating the body corporate is not responsible for the repair. Another letter provided by the applicant dated 2 August 2010 from Grant Mifsud (body corporate manager) stated the repair was her responsibility. The committee submits the repair is the responsibility of the applicant as the part of the pipe that required work runs between the gyprock wall in the laundry of Lot 65 and the block wall that divides the lot from an adjoining unit, the pipe is not in the block wall (which the committee states is the boundary structure) and the pipe services only Lot 65. The owner of Lot 109 agrees with the committee.

The applicant argues the defective part of the pipe is located in a dividing wall between two lots. She says a wall can be of many kinds and of many different constructions having many different components. The applicant submits to divide a wall into its component parts is an artificial interpretation of the meaning of the word. She believes the wall begins at one physical face (the plasterboard) and ends on the outside of the corresponding plasterboard.

The pipe is ‘utility infrastructure’ supplying a ‘utility service’ to a lot as defined in schedule 6 of the Act. As mentioned by the parties, utility infrastructure is treated as common property unless it is: firstly, solely related to supplying utility services to a lot; and secondly, 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 thirdly, located other than within a boundary structure for the lot (s 20(1)(b), Act). ‘Boundary structure’ 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 (s 20(3), Act). Utility infrastructure is treated as common property if any one of the three elements is not satisfied.

Firstly, given submissions I am satisfied the part of the pipe that was repaired supplies a utility service solely to Lot 65. The material indicates the pipe feeds cold water to the laundry in Lot 65.

With respect to the second element, the lot was created by the registration of a plan of subdivision (BUP 103686) which is now taken to be a building format plan of subdivision under the LTA (s 331, Act). The boundary of the lot is determined by reference to the Land Title Act 1994 (LTA). “A building format plan of survey 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). I am satisfied from the material that the relevant boundary of Lot 65 is at or about the centre of the block wall and that the part of the pipe that required repair is located within the lot.

This dispute is essentially about the third element stated in section 20(1)(b), that is whether the relevant part of the pipe is within a boundary structure for Lot 65. I am not persuaded by the body corporate opinion that plaster wall sheeting, either in this case or generally, is not part of a wall. The Act defines ‘wall’ to include “a door, window or other structure forming part of the wall”. While this definition does not state plaster wall sheeting or a similar product is, or is part of, a wall, it does not exclude a material of this nature. The Concise Oxford Dictionary (seventh edition) defines ‘wall’ as “a continuous and usu. vertical and solid structure of stones, bricks, concrete, timber, etc., narrow in proportion to length and height, serving to enclose (partly) or protect or divide off town, house, room, field etc.; surface of inner side(s) of room, esp. as place for display of pictures etc.”.

In my view, plaster wall sheeting mentioned in this application constitutes an inner side of the laundry and encloses or divides off the lot. The ordinary meaning of ‘wall’ supports the view that plaster wall sheeting is part of the wall. I consider the wall between Lot 65 and the adjoining lot includes the plaster wall sheeting and the part of the pipe that required maintenance is located within a boundary structure for Lot 65. Given section 20(1)(b) of the Act, the pipe is common property.

While a lot owner must maintain the person’s lot in good condition, the owner is not obliged to maintain utility infrastructure within the boundaries of the lot and part of common property (s 170(2) and (4), Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module)). The body corporate’s duties include administering, managing and controlling common property reasonably and for the benefit of lot owners (s 152(1), Act). It must maintain common property in good condition (s 159(1), Standard Module).

There is nothing to suggest that, in the circumstances, the body corporate’s obligation under section 159(1) is subject to section 159(3) of the Standard Module. In replying to submissions, the applicant states, and there is nothing to suggest otherwise, the sheeting and the blocks are part of the original construction. The committee submits the applicant paid for the plumbing work without notifying the body corporate. The owner of Lot 109 suggests the applicant acted as if it was her responsibility as she or her agent allowed the plumber to do the work without referring the matter to the body corporate. In response to submissions, the applicant states the work was authorised by the building manager (the letting agent). I do not consider the body corporate’s duty to maintain is reduced because the work would appear to have been authorised and completed without its authority. In my view, the body corporate is responsible for the invoiced cost of the work.

The applicant has also sought reimbursement of the costs of making this application and an earlier conciliation application. In this regard, an adjudicator may order costs of a nature and for reasons mentioned in section 270(3) and 280 of the Act. There is no power for an adjudicator to order the payment of application fees in the circumstances of this application, especially given the body corporate participated in conciliation. This outcome sought is dismissed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders