Ishmaael [2000] QBCCMCmr 258 (5 June 2000)

P G DanielsREFERENCE: 0057-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15574
Name of Scheme:	Ishmaael
Address of Scheme:	74 Ishmaael Road EARLVILLE QLD 4870

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

John Robert Burns the owner of lot 3



P G DanielsI hereby order that if fire extinguishers within lots in the Ishmaael community titles scheme are owned by the Body Corporate for Ishmaael, then the Body Corporate for Ishmaael must maintain them in good condition.

I further order that if fire extinguishers within lots in the Ishmaael community titles scheme are owned by the owners of lots, then the owners of lots must maintain them in good condition and if they are in need of replacement, owners must replace them.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0057-2000

“Ishmaael” CTS 15574

The applicant, John Robert Burns, the owner of lot 3, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

Resolves the matter regarding responsibility to service fire extinguishers.

Section 223(1) 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 community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The applicant states that the Body Corporate pays the insurance on all the buildings. A requirement of the insurer is that the sheds are to have fire extinguishers within the buildings. The Body Corporate claims that as the fire extinguishers are internal to the sheds then it is the owners’ responsibility to service and maintain them.

The applicant states that others think the Body Corporate should maintain the fire extinguishers on the basis that if only one extinguisher in a shed is not maintained, then the insurance policy could be null and void.

The issue to be addressed is, who is responsible to maintain the extinguishers.

The answer depends on whether the extinguishers are body corporate assets or goods that belong to individual lot owners. I will address each separately.

Body Corporate Assets

The term “body corporate assets” is defined by section 12 of the Act as follows:

Meaning of “body corporate assets”

12.(1) “Body corporate assets”, for a community titles scheme, are

items of real or personal property acquired by the body corporate, other than

property that is incorporated into and becomes part of the common

property.

Example—

An airconditioning unit might be bought by a body corporate as a body corporate

asset, but become common property when it is installed as a fixture.

(2) Body corporate assets may consist of any property an individual is

capable of acquiring.

Example—

Freehold land, a lease, a licence to use land for a particular purpose, a billiard

table, gardening equipment.

Section 115 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) provides that a body corporate must maintain body corporate assets in good condition.

2.	Goods of Lot owners

The responsibility to maintain derives from the definitions of “utility infrastructure” and “utility service” in the Act and section 120(4) of the Regulation.

The terms “utility infrastructure” and “utility service” are defined in the dictionary of the Act as follows:

“utility infrastructure” means cables, wires, pipes, sewers, drains, ducts,

plant and equipment by which lots or common property are supplied

with utility services.

“utility service” means—

(a) water reticulation or supply; or

(b) gas reticulation or supply; or

(c) electricity supply; or

(d) air conditioning; or

(e) a telephone service; or

(f) a computer data or television service; or

(g) a sewer system; or

(h) drainage; or

(i) a system for the removal or disposal of garbage or waste; or

(j) another system or service designed to improve the amenity, or

enhance the enjoyment, of lots or common property.

A fire extinguisher is “equipment” that provides a fire fighting “service designed to improve the amenity, or enhance the enjoyment, of lots or common property.” Consequently, it is utility infrastructure.

It is not part of the common property as it is within the boundaries of a lot and not within a boundary structure: see section 21 of the Act.

Section 120(4) of the Regulation provides:

(4) The owner of a lot included in the scheme must maintain the utility

infrastructure within the boundaries of the lot, and not part of common

property, in good condition and, if it is in need of replacement, must replace

it.

Responsibility

If the extinguishers were purchased and continue to be owned by the Body Corporate, then it must maintain them in good condition as they would be Body Corporate assets. This obligation would prevail over any obligation of an owner in respect of utility infrastructure.

If the extinguishers are owned by lot owners, then they must be maintained by owners including replacing them if that is necessary: section 120(4) of the Regulation.

I will make orders to this effect.