This article is about maintenance obligations and reimbursement for damages has been supplied by the Commissioner for Body Corporate and Community Management.
This case examines the jurisdiction and powers of adjudicators and whether a body corporate is responsible for damage to property, or other costs, caused by defects in original elements of the building that a body corporate has a duty to maintain.
Background
This dispute arose because of defects in the construction of a concrete suspended flooring system that formed the first floor of the scheme’s building. The defects were likely there from when the building was built, but only came to light after movement in the floor of the applicant’s bathroom caused tiles to crack and the waterproofing to fail. The applicant said the body corporate had a duty to maintain the floor in structurally sound condition and its failure to do so had caused damage to his property.
The applicant was seeking to be reimbursed more than the $10,000 limit an adjudicator could award for damage to property caused by a body corporate’s failure to maintain (Section 281(2)(b) of the Act). He also wanted to be compensated for lost rent, which he said was beyond an adjudicator’s power to order. For these reasons, he asked the adjudicator to dismiss the application so all of his claims for damages could be dealt with in at one time in another court or tribunal of competent jurisdiction.
However, the adjudicator declined to dismiss the application for it to be heard elsewhere. The adjudicator found the primary issue in dispute was whether the body corporate had breached a duty to maintain the floor. She was thus satisfied the dispute was about the performance of duties under the Act and a claimed contravention of the Act and was therefore within an adjudicator’s jurisdiction. Although some of the orders sought by the lot owner might be beyond the powers of an adjudicator, that could only be assessed once a finding had been made on the primary issue in dispute.
The applicant explained that in 2015, it was thought his bathroom was the source of water leaks into the lot next to his. The applicant says he paid a body corporate insurance excess relating to claims for damages to the neighbouring lot. He then renovated his bathroom, including re-waterproofing and re-tiling the area. However, in 2017 his tenants reported another water leak, this time, within his own lot. He says his lot became uninhabitable and the tenants vacated it in or around October 2017.
This started a lengthy dispute between the applicant and the body corporate about the cause of the leak and the resulting damage. Both parties obtained several engineering reports to discover the source of the issue. In summary, it was discovered that at the time the building was constructed, a ‘control joint’ – which is intended to move – had erroneously been placed in the floor of the lot and through the bathroom. There were also questions raised whether the floor was properly supported from underneath. The engineering reports recommended certain works be carried out to brace the joint and limit the movement at the joint.
The applicant and body corporate could not agree on which party was responsible for the costs of repairing the bathroom and the costs of consequential works to the kitchen. In the meantime, the lot remained untenanted between 2017 and 2020. In 2020, the applicant completed further renovation works to make the lot habitable again. The parties could also not agree on whether additional investigation or works to the floor were required.
The applicant sought orders that the body corporate:
- reimburse him for the insurance excesses he paid and his first bathroom renovations relating to the 2015 leak;
- reimburse him for the reports he obtained to ascertain the cause of the damage;
- reimburse him for the works to his kitchen and bathroom caused by the 2017 leak; and
- obtain a further engineering report and take all reasonable steps to execute rectification works in accordance with that report.
Decision
The adjudicator was satisfied that the body corporate had a duty to maintain the floor in a structurally sound condition and that it had breached that duty.
She said that given the credible evidence that the defects in the floor may not have been sufficiently remediated, she made orders for the body corporate to engage a structural engineer to provide a further report.
She also made orders pursuant to section 281 of the Act that the body corporate reimburse the applicant for some of the more recent repairs he had carried out to his bathroom. The adjudicator also made an order pursuant to section 276(1) that the body corporate reimburse the lot owner for some works to his kitchen that were necessitated by the repairs to the floor. A further order was made that the body corporate reimburse the applicant the cost of one, but not all, of the engineering reports.
Information Service Freecall 1800 060 119 Commissioner for Body Corporate and Community Management
This post appears in Strata News #689.
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This article has been republished with permission from the author and first appeared on the UOAQ website.
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