Casino Gateway [2000] QBCCMCmr 99 (23 February 2000)

P G DanielsREFERENCE: 0679-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9184
Name of Scheme:	Casino Gateway
Address of Scheme:	35 Australia Avenue BROADBEACH QLD 4218

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

P G DanielsI hereby order that the application for an order:

That the owner of lot 1 repay $150 for property removed without consent

is dismissed.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0679-1999

“Casino Gateway” CTS 9184

The applicant, the Body Corporate for Casino Gateway, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

The owner of lot 1 repay $150 for property removed without consent.

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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The applicant complains that the respondent, the owner of lot 1, Ms Vitali, removed an oil pressurised closer for a fire door that services lot 1. The cost of replacing the closer was $150. The applicant wants the respondent to pay the cost of replacement.

The respondent has not made a submission in respect of the application. However, the applicant has supplied two letters from her letting agent, Surf Parade Realty Pty Ltd, dated 26 August 1999 and 30 September 1999 that are relevant to this matter. Both letters are signed by Gordon Moy.

In the letter of 26 August 1999 Mr Moy makes the following statement, “... the door closer was eventually removed some time ago because of countless complaints by unit 2, that the closer made the door ‘bang’ shut, and disturbed the complainant’s sleep. Many attempts were made to adjust it, to no avail. I suggest that the closer was faulty.” It will be noted that Mr Moy does not state who removed the closer but rather gives an explanation for the removal.

Mr D Geisel, the Secretary/Treasurer of the Body Corporate responded to Mr Moy by letter dated 1 September 1999. The letter contains the following relevant material:

1.	The closer which was removed was only installed on 3 March 1998;
2.	Mr Geisel asks why the closer wasn’t returned to the Body Corporate;
3.	Mr Geisel asks for details about attempts to adjust the closer;
4.	Mr Geisel asks why the body corporate manager or Body Corporate wasn’t informed of the problem so that the warranty procedure could be followed;
5.	Mr Geisel contests the statement that the closer made the door ‘bang’ shut. He states that complaints commenced after the closer had been removed.

Mr Moy replied by letter dated 30 September 1999. In this letter and in his previous letter of 26 August 1999 he states that the Body Corporate is liable for fire doors. Mr Moy obviously did not accept that the respondent is liable for the removal of the closer.

Law

Section 109(2)(a)(ii) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) provides that the Body Corporate must maintain in good condition “doors, windows and associated fittings situated in a boundary wall separating a lot from common property”

A closer such as the one removed in this case would be an “associated fitting”. It is a Body Corporate responsibility to maintain the closer in good condition.

However, in this case the Body Corporate was not given an opportunity to maintain the closer as it was removed.

The issue that needs to be decided is whether the respondent should be compelled to pay for a new closer.

The applicant makes it claim based on section 126-129 of the Act and By-law 14.

Sections 126 to 129 are not relevant to this dispute. They impose mutual duties on owners/occupiers in respect of peaceful co-existence.

By-law 14 prevents damage to the common property. I find that it is not relevant to this dispute as the closer is not part of the common property. Mr Geisel indicates in his letter of 1 September 1999 that the closer that had been removed was affixed to the internal side of the door. As such, it was a part of lot 1.

The legislation which is relevant is section 109(4) of the Regulation which provides as follows:

(4) To avoid 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 is not

prevented from recovering an amount of damages 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.

It is clear, based on section 109(4) that the Body Corporate can recover damages from a person who caused or contributed to the damage or deterioration of the closer. In my view damages could be claimed under this sub-section for the removal of the closer.

It is necessary for an applicant to prove that it was the respondent who removed the closer. The applicant must prove this matter on the balance of probabilities.

There is no evidence before me that indicates the respondent removed the closer. On this basis I would dismiss the application.

I do wish to state to the respondent that the applicant has made some good points in its application. The removal of the closer compromised the building’s fire safety. The removal also resulted in the Body Corporate not being able to rely on a guarantee from the manufacturer regarding the performance of the closer, if the closer was not operating properly. The purchase of a new closer would have been paid for from Body Corporate funds which come from all owners by the payment of contributions. Whilst I am not willing to make any findings against the respondent on this occasion, I do ask that she takes these matters into account. In particular, the respondent or her letting agent, Mr Moy, should consult with the Body Corporate Committee if the closer should not perform properly in the future.